QUESTIONS PRESENTED

Whether the court of appeals correctly held that the Child Online Protection Act, 47 U.S.C. § 231, violates the freedom of speech clause of the First Amendment by stifling a large amount of speech on the World Wide Web that adults have a constitutional right to communicate and obtain?

Whether Child Online Protection Act, 47 U.S.C. § 231, imposes the most restrictive community standards on Web speech nation wide?

Whether the Child Online Protection Act, 47 U.S.C. § 231, is narrowly tailored enough in the confines of the First Amendment?

TABLE OF AUTHORITES

Pages(s)

CASES

American Civil Liberties Union v. Reno,

929 F. Supp. 824 (E.D. Pa. 1996),

aff'd, 521 U.S. 844 (1997) .......................................………………………..passim

American Civil Liberties Union v. Reno,

31 F. Supp. 2d 473 (1999),

aff'd, 217 F.3d 162 (3d Cir. 2000) .................................................................passim

Butler v. Michigan,

352 U.S. 380 (1957)..............................................................................…………...9

Carey v. Population Services International,

431 U.S. 678 (1977)..............................................................................…………...9

Central Hudson Gas & Electric Corp. v. Public Service Commission,

447 U.S. 557 (1980).....................................................…………………………..13

Jacobellis v. Ohio,

378 U.S. 184 (1964).....................................................…………………………..15

Miller v. California,

413 U.S. 15 (1973)................................................…………………………….7, 15

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992).....................................................…………………………..12

Roth v. United States,

354 U.S. 476 (1957).....................................................……………………7, 14, 15

Sable Communications v. FCC,

492 U.S. 115 (1989)..............................………………………………………….12

United States v. Playboy Entertainment Group, Inc.,

529 U.S. 803 (2000).............................................……………………..7, 12, 13, 14

STATUTES

Child Online Protection Act,

47 U.S.C. § 231 (1998)......................................................................……… passim

(a) Requirement to restrict access

(1) Prohibited conduct

Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000 imprisoned not more than 6 months, or both.

(1) Defense

It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors -

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

(B) by accepting a digital certificate that verifies age; or

(e) Definitions

For purposes of this subsection, (FOOTNOTE 1) the following

definitions shall apply:

(FOOTNOTE 1) So in original. Probably should be ''section,''.

(1) By means of the World Wide Web

The term ''by means of the World Wide Web'' means by placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol.

(2) Commercial purposes; engaged in the business

(A) Commercial purposes

A person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications.

(B) Engaged in the business

The term ''engaged in the business'' means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income). A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web.

(3) Internet

The term ''Internet'' means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.

(6) Material that is harmful to minors

The term ''material that is harmful to minors'' means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that -

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(7) Minor

The term ''minor'' means any person under 17 years of age.

Communications Decency Act of 1996,

47 U.S.C. § 223 (1996).................................................................................. passim

Section 223 (47 U.S.C. 223) is amended--

(1) by striking subsection (a) and inserting in lieu thereof:

(a) Whoever--

(1) in interstate or foreign communications--

(A) by means of a telecommunications device knowingly--

(i) makes, creates, or solicits, and

(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;

(B) by means of a telecommunications device knowingly--

(i) makes, creates, or solicits, and

(ii) initiates the transmission of,

any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;

(d) Whoever--

(1) in interstate or foreign communications knowingly--

(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or

(B) uses any interactive computer service to display in a manner

available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication;

(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under

subsection (a)(2) with respect to the use of a facility for an activity under subsection

(a)(1)(B) that a person--

(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or

(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.

FACTS OF THE CASE

This case deals with the Child Online Protection Act (COPA), 47 U.S.C. § 231 (1998), which was signed into law on October 21, 1998. “The COPA prohibits an individual or entity from knowingly or with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, making any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors” (American Civil Liberties Union v. Reno, 217 F.3d 162 (2000)). The COPA is the result of the government’s attempt “to ‘address the specific concerns raised by the Supreme Court’ in invalidating the Communications Decency Act (CDA)” (American Civil Liberties Union (2000)).

The CDA was Congress's first attempt to regulate the distribution to minors of indecent material on the Web/Internet. All nine justices of this Court declared the CDA unconstitutional in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). In order to keep minors from accessing sexually explicit material, the CDA stifles a good amount of speech that adults have a constitutional right to read and look at. This Court held that while “we have repeatedly recognized the governmental interest in protecting children from harmful material. But that interest does not justify an unnecessary broad suppression of speech addressed to adults” (Reno (1997)). This Court also held that because the CDA is a criminal statute, it “may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images” (Reno (1997)).

The day after the COPA was passed the American Civil Liberties Union (ACLU) brought an action against the Attorney General, Janet Reno, challenging the COPA’s constitutionality and seeking to forbid its enforcement. The case was heard by the United States District Court for the Eastern District of Pennsylvania. The district court issued a preliminary injunction against the COPA that prevents the enforcement of the statute. In the opinion the district court stated that the “COPA placed too large a burden on protected speech because of the high economic cost that web publishers would incur in implementing an age verification system and would cause them to cease publishing such material” (American Civil Liberties Union (2000)).

The government then appealed the district court’s decision to the United States Court of Appeals for the Third Circuit. The court of appeals agreed with the district court and upheld the preliminary injunction against the COPA. Circuit Judge Garth stated in his opinion that “the over breadth of COPA’s definition of ‘harmful to minors’ applying ‘contemporary community standards’ clause…so concerns us that we are persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of likelihood of unconstitutionality of the entire COPA statute” (American Civil Liberties Union (2000)).

SUMMARY OF ARGUMENT

In the past Congress has attempted to regulate material that may be deemed as harmful to minors. Their first means of doing so was the Communications Decency Act of 1996. The CDA was a federal statute that restricted the availability of indecent material via the Internet to minors. However, this court struck down the CDA because of its much ambiguity and the wording of the statute made it to broad for a content specific regulation. Therefore, the CDA “lacks the precision that the First Amendment requires when a statute regulates the content of speech” Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). Because of this, protected speech suffers the possibility of being censored. COPA like its predecessor, the CDA, suppresses a large amount of speech that adults have a constitutional right to communicate and obtain.

COPA is not the least restrictive means for regulation of the World Wide Web in regards to obscenity. According to United States et al v. Playboy Entertainment Group, 529 U.S. 803 (2000) when there are means that are less restrictive, then they must be used in order not to impede the access of obscene material for adults that have a constitutional right to view it. Filtering Software would place the responsibility of monitoring obscene materials on the parents. It has been the responsibility of parents to monitor their child’s viewing habits of obscene material in regards to other media and that responsibility should be required for the World Wide Web as well.

In determining the access that commercial businesses have to Web sites, COPA infringes upon the free speech rights of adults. COPA broadly applies to all Web sites, which communicates any material that is harmful to minors on the Web, whether it is for profit or non-profit use. The ‘commercial purposes’ requirement restricts non-profit and private individuals from freely accessing information on the Web, which is still an infringement of one’s rights. The commercial and non-commercial status of Web users is insignificant due to the fact that there cannot be a regulation that prohibits or deters a person from practicing their Constitutional freedoms which COPA is trying to enforce.

COPA hopes to establish a national community standard for regulating materials on the World Wide Web. However, as stated in past precedents of Roth v. United States, 354 U.S. 476 (1957) and Miller v. California, 413 U.S. 15 (1973), the deciding standard on what is deemed indecent should be a state or local community standard. Because the scope of the World Wide Web reaches different communities across the nation it is not feasible to create a nation wide regulation that would regulate the access of minors to view obscene or “harmful material.” By doing so would bring the nation under one national community standard, which would go against this court’s ruling in Miller (1973).

In order to prohibit minors from different levels of possibly harmful material, COPA has selected a method that is not the least restrictive means available. By requiring users to provide a credit card, adult access code, or an adult personal identification number many individuals rights are being violated. With these standards that COPA requires there are several costs and burdens that both the consumer and producer are presented.

ARGUMENT

I. COPA IS A CONTENT-BASED REGULATION OF SPEECH AND FAILS STRICT SCRUTINY

A. COPA Is Almost Identical To The CDA

The CDA was held to be unconstitutional by this Court in Reno (1997), because it stifles a good amount of speech that adults have a constitutional right to read and look at. COPA, which is Congress’ second attempt to protect minors from certain types of speech, is almost identical to its predecessor. COPA does not fix the problems that resulted in the CDA being held unconstitutional by this Court.

COPA like its predecessor, the CDA, suppresses a large amount of speech that adults have a constitutional right to communicate and obtain. The CDA prohibited any communication that was “indecent” or “patently offensive” on the Internet. COPA prohibits any communication on the World Wide Web for commercial purposes that is “harmful to minors.” 47 U.S.C. § 231 (a) (1). The term “patently offensive” used in the CDA was determined by this Court to be unconstitutional vague and would “undermine the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials” (Reno (1997)). But this same term, which was found too vague once, before is used again in COPA and again it is not defined within the statute. 47 U.S.C. § 231 (e) (6) (B).

Both the CDA and COPA are criminal statutes, which this Court held in Reno (1997) might create a threat that “may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.” Web publishers in fear of criminal prosecution may not publish speech, which is protected by the First Amendment.

Both statutes have affirmative defenses that protect speakers from prosecution as long as they have, in “good faith”, restricted access by minors to material that is “harmful to minors” for COPA, or indecent or obscene for the CDA. 47 U.S.C. § 231 (c) (1). 47 U.S.C. § 223 (e) (5) (A) (B). The only difference between the COPA’s defenses and the CDA’s defenses is that under COPA the use of digital certificates that verify age qualify as an affirmative defense. “The district court found that as a technological matter the only affirmative defenses presently available are the implementation of credit card or age verification systems because there is no currently functional digital certificate or other reasonable means to verify age” (American Civil Liberties Union v. Reno, 217 F.3d 162 (2000)). Therefore, the same affirmative defenses that were unable to sway this Court that the CDA was constitutional are also the same affirmative defenses used by COPA.

B. COPA Suppress A Large Amount Of Constitutionally Protected Speech

COPA requires Web publishers to deny access to both minors and adults to any material that could be considered to be “harmful to minors.” In declaring the CDA’s proscriptions on transmitting indecent material to minors unconstitutional, this Court held in Reno (1997) that while “we have repeatedly recognized the governmental interest in protecting children from harmful material. But that interest does not justify an unnecessary broad suppression of speech addressed to adults.” COPA is also unconstitutional for this reason because it suppresses the protected free speech rights of adults.

COPA makes it a criminal act to transmit material that adults have a constitutional right to receive and communicate. Congress cannot be allowed to justify a law that denies a person (i.e. an adult) from receiving speech that they have a constitutional right to receive, just to protect a certain group of susceptible individuals (i.e. children). In Butler v. Michigan, 372 U.S. 380 (1957):

This court responded by declaring unconstitutional a state statute that made it a crime to distribute material “found to have a potentially deleterious influence on youth.” The justices struck down the statute, finding fault with the child standard. It is incompatible with the First Amendment, the justices said, to reduce the reading material available to adults to that which is fit for children. To do so, according to Justice Frankfurter’s opinion, is “to burn the house to roast the pig.”[1]

Some of the speech which the COPA would suppress includes resources and information on gynecology, sexual health; and resources designed for gays, lesbians, bisexuals, and transgendered people. Materials on these subjects are not considered obscene and therefore are consider constitutionally protected. In Carey v. Population Services International, 431 U.S. 678 (1977) this Court acknowledged that “where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.”

COPA defines ‘commercial purposes’ as individuals or entities that are “engaged in the business of making such communications.” 47 U.S.C. 231 (e)(2)(A). It also defines a person ‘engaged in the business’ as “one who makes a communications, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person’s trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person’s sole or principal business or source of income)”. 47 U.S.C. 231 (e)(2)(B).

However, Congress cannot regulate the constitutionality of protected speech through Web sites, which are commercially operated, no more than it can for non-commercial purposes. Even though Congress is trying to narrowly-tailor the statute to apply only to ‘communications for commercial purposes…by means of the World Wide Web’, COPA still provides no practical means of screening out minors from accessing any obscene material without burdening adults’ access and thus, infringing upon their free speech rights.

COPA’s “commercial purposes” requirement is also unacceptably, and unconstitutionally vague. When the government is trying to regulate any form of expression, it must be narrowly tailored enough to meet the government’s objectives, and that the regulation is not overbroad. If the statute is overbroad, it goes “far beyond what is necessary to deal with the legislature’s legitimate concern by restricting constitutionally protected expression along with unprotected speech.”[2]

According to Jerry Berman from the Center for Democracy and Technology, a Commissioner of COPA explains the mentality of the commission’s findings on regulation of ‘pornographic and sexually oriented’ materials to minors. The only feasible way of doing this without violating the Constitution is by “empowering families to guide their children’s Internet use”. COPA did what Congress had not, “examining how to protect children online in ways consistent with the Internet’s architecture and Constitutional requirements in both forms, whether meant for commercial or non-commercial purposes.” However, in their interest to protect minors, they are infringing upon the rights of adults to access such information. It is also important to realize that no matter what laws may be created in the U.S. to regulate these materials, that they are unable to restrict “the flow of content originating in other countries and therefore cannot effectively protect children”. Therefore, by merely attempting to affect change in the commercial environment in the United States, one is effectively segregating the citizens of the U.S. from the rest of the world, since we are unable to regulate what people in other countries can view as well.

In effect, COPA broadly applies to any and all Web sites that communicate any material that is harmful to minors on the Web, whether it is for profit or non-profit purposes used by commercial businesses. The ‘commercial purposes’ requirement inadvertently restricts non-profit and private entities from engaging in Internet access thus, infringing upon their free speech rights. For example, non-profit Web sites that pertain to medical and health issues or one’s private sexual orientation, is restricted and thus, affected by COPA’s enforcement. The district court has held that even if a person loses their First Amendment rights, no matter how brief, it still produces irreparable harm and is therefore, deemed to be unconstitutional in accordance with the First Amendment of the United States Constitution.

C. COPA’s Affirmative Defenses Dissuade Adult Web Users From Accessing Protected Speech And Web Publishers From Posting Protected Speech

There are three affirmative defenses under COPA in which a speaker who publishes or displays materials that are deemed “harmful to minors” may avoid conviction: (1) requiring the use of a credit card, debit account, adult access code, or adult personal identification number; (2) by accepting a digital certificate that verifies ages; or (3) by any other reasonable measures that are feasible under available technology. 47 U.S.C. § 231 (c) (1) (A).

As mention previously, the district court found that at this time there is currently no digital certificate that will verify or other means to verify ages. Ergo, the only affirmative defenses remaining are credit cards and adult access codes, which this Court already considered in Reno (1997) and held to be inadequate to save the CDA.

The credit card verification system would preclude all adults that do not have a credit card from accessing speech, which they have a constitutional right to view. The district court acknowledged this problem when it held that the credit card requirement “would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material” (American Civil Liberties Union v. Reno, 31 F.Supp. 2d 473 (1999)).

As a method to block the availability of the different levels of offensive material, COPA attempts to restrict access to material that may be deemed lustful, obscene or of no serious value to children. The issue is that COPA did not use the method with the least restrictive means available. According to COPA minors may be restricted to certain material that may be deemed obscene by requiring the use of credit cards, adult access code, or an adult personal identification number. Such a method may be seen to have good intentions; however, it seriously infringes on an adults constitutional rights. Requiring such procedures for adults to view material that may be considered “indecent” or “patently offensive” is a large burden on the adult. Different forms of technology have been developed that make it somewhat more difficult to gain access to inappropriate materials. The district court concluded, “once a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographical community.” With the limitations of technology there are only certain ways that websites can determine the age of the user.

As determining the age of the user is essential in the mission to protect minors from harmful material on the Internet, COPA set several standards that would determine who is an adult. These standards that it has set have created several new costs and burdens. There are worries that are associated with these different restrictions being placed on different websites. Such requirements place a burden on both the adult who wishes to gain access to the material as well as those companies/organizations that are trying to provide the material and gain customers. By making steeper restrictions on accessing particular sites, there develops the concern of an individual company’s success or survival. The district court found that the cost for a Web publisher to run such a program could “range from $300 to thousands of dollars.” A constant fee that is charged to these providers deals with the verification process done on those that do provide their credit cards. There are many people in society that are uncomfortable with providing such material over the Internet out of fear that someone else could acquire it (E.g. credit cards). If a site is to require such information to gain access, the company that created the site loses money whenever someone who does not wish to give their credit card number leaves the site, when normally they might have entered. By adding the need for a credit card to access these sites, come necessary fees. With additional costs now being added, there may come a time when there will be fees allocated to the user to help compensate each companies’ expenses for providing particular restrictions on material. The credit card portion of the website typically restricts all inappropriate material while acceptable material may be viewed prior to the request for such a number. Again requirements such as this create a serious burden and create additional costs. The cost that would be necessary to make sure this material is filtered would again be a cost that most companies will charge to the user.

Companies measure the need and effectiveness of websites as to the number of visitors and costumers that they have entering on a regular basis. This is an important measure of the effectiveness of the site for the company. By making steeper restrictions on accessing particular sites, there develops the concern of individual company success for survival. If a lack of interest is found in the website due to the difficulty to gain access, then the provider may decide to cut their loses and focus their attention elsewhere. Overall the main concern is that there are some serious monetary loses due to these restrictions.

The chilling effect, a law intended to regulate certain forms of illegitimate expression cannot be written so as to make people fearful of engaging in legitimate activity, is definitely a drawback to all of these new restrictions. With the requirements of adult personal identification numbers comes bigger concerns.[3] It is an adult’s right to explore the World Wide Web at there own discretion. With so many restrictions and instances that request verification, many users may stop visiting particular websites out of fear that someone may find out that they are looking at them. There exists an overall fear of a violation of privacy. For example, there are many web sites on the World Wide We b that deal with issues and information relating to gays, lesbians, bisexuals, and transgendered people. There are “closeted” individuals that do not wish to divulge the fact that they visit these web sites. Credit card verification systems and adult access codes would force these “closeted” individuals to give their personal information to access this sites. Most of these “closeted” individuals would stop accessing the web sites rather than give their personal information and create a record that they accessed the sites.

There simply needs to be an alternative method to restrict access of minors without inhibiting the rights of adults. Under COPA there are so many regulations that adults end up being restricted due to the concern for censorship. This concern is similar to the one faced in United States v. Playboy Entertainment Group, 529 U.S. 803 (2000) where the large amount of regulations violate the basic freedoms of free speech, while less restricting alternatives are available. The same conclusion as found in this case must not be ignored when considering the effectiveness of COPA. Placing such strict regulations on all of society, simply to protect children from harmful material is not sufficient grounds for such actions.

D. COPA Is Not Narrowly Tailored And Is Not The Least Restrictive Alternative

The district court held that COPA is a content-based restriction because it prohibits Web publishers from displaying material that is “harmful to minors.” Laws that discriminate based on content are “presumptively invalid” and must pass the strict scrutiny test. R.A.V. v. St. Paul, Minnesota, 505 U.S. 377 (1992). Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989).

In order for COPA to pass the strict scrutiny test the government must prove that it has a compelling interest to regulate constitutionally protected speech and in doing so it must use the least restrictive means. See Sable (1989) (“The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.”)

In order for the government to prove that COPA passes the least restrictive means provision of the strict scrutiny test, it must show that COPA ‘s methods for regulating speech are effective, and that the least restrictive alternatives are not effective. In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) this Court created that two prong criteria test:

The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.

“When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals” (United States, et al. v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)).

COPA was created to prohibit minors from accessing material that is “harmful to minors.” COPA cannot do an effective job of achieving its goal because it only regulates speech on the World Wide Web and within the Web it only applies to Web sites in the U.S. It is estimated that forty percent of the Web sites on the World Wide Web derive from countries outside the U.S. So, children within the U.S. can still access material “harmful for minors” on the Web from countries outside the U.S., because COPA does not apply to foreign countries. Thus, COPA fails strict scrutiny because it does not advance the government’s interest in protecting children from material “harmful to minors.”

COPA’s methods for regulating constitutionally protected speech on the World Wide Web are not the least restrictive means. At this time there are less restrictive alternatives available that do a more effective job of supporting the government’s interest. Blocking and filtering software is currently available that would prevent minors from accessing speech that would be considered harmful for them without infringing on adults’ rights to access the same material. The district court held that “blocking or filtering technology may be at least as successful as COPA would be in restricting minors’ access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web site operators.” This Court acknowledged in Playboy (2000) that “targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.”

COPA establishes a uniform standard for all individuals under seventeen to conform. This type of strict regulation is illogical on its face. There exists a great difference in what is suitable for an adolescent and child. Instead of allowing the government to restrict access on the World Wide Web for children, the responsibility should be placed with the parents. With the recent development of filtering software such as NetNanny, Cyber Patrol, and Cybersitter, programs that block web sites that are deemed unacceptable by parents, it is much easier for parents to control what their children view on the World Wide Web. This software takes questionnaires, designed by each web site, testing the levels of sexuality, nudity, violence, and drug and alcohol content. The parents are then asked what is acceptable for their children to see, tailoring specifically for each family. This method allows a family with a six-year-old child accessing the Web to be more restrictive than a family with a seventeen-year-old.

According to the Center for Disease Control (CDC) in 1999, 49.9 percent of high school children are having sex compared to the less than 10 percent of children under the age of thirteen. When a child reaches high school they are essentially getting a taste for the real world and beginning to seek answers. Particularly in the realm of sexuality, adolescents are going to have questions that they want to research. Parents should be able to make the determination as to what is acceptable for their child or children to see, especially at the age when they are entering into adulthood. For example, children under the age of seventeen are allowed to enter an R rated movie with parental consent, and children can rent videos that are R rated at a video store with approval from their parents. An R rated movie probably has some level of obscene material contained within in it. Now parents might give there sixteen-year-old child permission to view an R rated movie, but they would not allow them to view this movie if they were six or seven-years-old. The same precedent that allows parents to censor what their children watch at the theatres should be used in this regard as well.

Another area where a parent has consent over their child is enlistment in to the military. At seventeen years old a teenager can enlist in the military with parental consent. A teenager can go to war and die with parental consent but yet he or she can still not view what he or she pleases on the World Wide Web under COPA.

It is evident that society allows for parental consent in various aspects of children’s lives, in particular with what is allowed for viewing. It would seem illogical to break from this nationally accepted method of regulation. The filtering/blocking software that has been developed allows for a simple and non-intrusive method to meet the same purpose intended by COPA. There is no reason to restrict the rights of the entire population when less restrictive means are available, according to (Playboy Entertainment Group (2000)).

II. COPA UNCONSTITUIONALLY COMPELS THE NATION TO ABIDE BY THE MOST RECTRICTIVE COMMUNITY STANDARDS

Virtually every citizen in this nation has access to the World Wide Web. Since its introduction to the world it has become a means used by students from elementary to high school as an educational and research tool. Its employment spans from making multi million dollar business deals, checking local and national news, to buying groceries. The impact that the World Wide Web has had on society cannot be measured through numbers or statistics. Almost every person has at one time or another drawn on its resources. The scope of the World Wide Web makes it impossible to determine the location of those individuals that may use it. Because there is no way to determine the location of those that use the World Wide Web, the only way to regulate the information available is to create one national community standard. This Court first addressed the issue of community standards in Roth v. United States, 354 U.S. 476 (1957). This Court set a new standard of obscenity that stated: “Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest” (Roth (1957)). Roth (1957) created a “contemporary community standards” measure that identified society’s changing perception of sexual morality. Roth (1957), however, failed to state whether these “contemporary community standards” would be applied to the state or local level, or whether this would be part of a nationwide standard set by the government.

In Jacobellis v. Ohio, 378 U.S. 184 (1964) this Court tried to resolve the issue of local vs. a national community standard. In this case Justice Brennan stated that the contemporary community standard was that of the nation and not of state or local community. Later in Miller v. California, 413 U.S. 15 (1973) this Court changed from a national contemporary standard to a local community standard. The court stated, “People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity” (Miller (1973)). The justices in Miller (1973) were aware of the various beliefs and standards that communities across the nation held, and their inability to impose one national community standard that would suffice in protecting those opinions. It would be impossible to create a standard that would impose the same restrictions on obscenity of citizens living in New York City and Oklahoma City fairly. Through COPA the government would require all “persons who make a communication, or offers to make a communication, by means of the World Wide Web, …with the objective of earning a profit as a result of such activities” conform to the regulations set forth (47 U.S.C § 231 (e) (2) (B)). This type of regulation is equivalent to the “national community standard” struck down by the justices in Miller (1973).

CONCLUSION

For the reasons stated above, plaintiffs respectfully ask this Court to affirm the preliminary injunction against the Child Online Protection Act.

Respectfully Submitted,

Jarrod Blaisdell, blaisdej@norwich.edu

Micah Chapman, chapmanm@norwich.edu

Margaret Krase, krasem@norwich.edu

Sean Maher, mahers@norwich.edu

Justin Ostensen, ostensej@norwich.edu

Jessica Rodriguez, rodriguj@norwich.edu

Celina Silva, silvac@norwich.edu

[1] Epstein, Lee and Walker, Thomas. Constitutional Law for a Changing America.

Washington, D.C.: CQ Press, 2001.

[2] Epstein, Lee and Walker, Thomas. Constitutional Law for a Changing America.

Washington, D.C.: CQ Press, 2001, pg 242.

[3] Epstein, Lee and Walker, Thomas. Constitutional Law for a Changing America.

Washington, D.C.: CQ Press, 2001, pg 242.