Ashcroft v. American Civil Liberties Union
|This article or section may contain parts that are misleading.|
|Ashcroft v. ACLU|
|Argued November 28, 2001|
Decided May 13, 2002
|Full case name||John Ashcroft, Attorney General v. American Civil Liberties Union, et al.|
535 U.S. 564 (more)|
122 S. Ct. 1700; 152 L. Ed. 2d 771; 2002 U.S. LEXIS 3421; 70 U.S.L.W. 4381; 30 Media L. Rep. 1801; 2002 Cal. Daily Op. Service 4057; 2002 Daily Journal DAR 5183; 15 Fla. L. Weekly Fed. S 256
|Prior history||On writ of certiorari to the United States Court of Appeals for the Third Circuit. ACLU v. Reno, 217 F.3d 162, 2000 U.S. App. LEXIS 14419 (3d Cir. Pa., 2000)|
|Subsequent history||On remand: ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003); affirmed, 542 U.S. 656 (2004)|
</td></tr><tr><th colspan="2" style="text-align:center;background-color: #99c0ff; white-space:nowrap">Case opinions</th></tr><tr><th scope="row" style="text-align:left">Majority</th><td>
Thomas (parts I, II, IV), joined by Rehnquist, Scalia (in full); O'Connor (Parts I, II, III-B, IV); Breyer (Parts I, II, IV)</td></tr><tr><th scope="row" style="text-align:left">Concurrence</th><td> O'Connor</td></tr><tr><th scope="row" style="text-align:left">Concurrence</th><td> Breyer</td></tr><tr><th scope="row" style="text-align:left">Concurrence</th><td> Kennedy, joined by Souter, Ginsburg</td></tr><tr><th scope="row" style="text-align:left">Dissent</th><td> Stevens</td></tr><tr><th colspan="2" style="text-align:center;background-color: #99c0ff; white-space:nowrap">Laws applied</th></tr><tr><td colspan="2" style="text-align:center"> Child Online Protection Act; U.S. Const. amend. I</td></tr></table> Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002) (also called Ashcroft v. ACLU) was a 2002 United States legal court case involving the American Civil Liberties Union and the United States government regarding the Child Online Protection Act (COPA). The unconstitutionality of the law was ultimately upheld by the United States Court of Appeals for the Third Circuit, while earlier injunctions against the law by that same court were at first dismissed by but later upheld by the Supreme Court of the United States. Ashcroft v. Free Speech Coalition dealt with a similar law, the Child Pornography Prevention Act of 1996 (CPPA).
In 1996 Congress created the Communications Decency Act, (CDA) as part of the 1996 Telecommunications Act. The CDA prohibited the use of the internet to purposely send indecent material to those under 18 years of age. The CDA was found unconstitutional in the decision of Reno v. ACLU, because in the CDA the internet was held to the same standards as broadcast media. The court held that because the internet is less “invasive” than broadcast media, the same rules could not apply to the two entities. Despite this ruling, however, the court agreed that the government does have a responsibility to protect minors from obscene/indecent internet content. Congress's second attempt to answer to this was the Child Online Protection Act (COPA) of 1998. COPA made it illegal for any commercial sources to allow minors access to “harmful” content, drawing on language from the landmark Miller v. California case to better define the term "obscenity."
Opponents of COPA argued that child pornography is already illegal, and COPA would not be effective because it would waste too much time going after individual sites within the US which could simply set up shop overseas if shut down. It was also argued that COPA would infringe upon rights of adults to receive non-pornographic/harmful messages, and that COPA was not the least invasive or most efficient way to protect children from harmful online content.
Ashcroft v. ACLU
The case Ashcroft v. ACLU started on January 11, 1999. According to Justice Thomas's majority opinion,
COPA opponents argued that self installed filters were much more effective at blocking obscene/indecent content, and would allow individuals to choose what content they wanted to see, not the government. Opponents also held that legal speech would be made criminal by COPA, and that adults would be prevented from seeing legal content if they did not have a credit card to get past security screens. It was also argued that in some cases fully complying with COPA would not have guaranteed freedom from prosecution (Stevens) and that the plan was flawed because some minors do have their own credit cards, and could thus go around the screens with ease.
Issues: Filters: They have four problems. 1. Under blocking where some pornographic material is still able to pass through. 2. Software costs money and not every family has the $40, or so, necessary for installation. 3. Filtering depends upon the parent’s willingness to decide which web sites are suitable for their children and enforcing this. 4. Software blocking lacks precision. A lot of valuable material is blocked along with the harmful content.
Wording: The phrases, “prurient interest” and “no serious value” block material that does not fall within the law. For example, material that would be blocked under these phrases are: serious discussions about birth control practices, homosexuality, or the account by a 15-year-old girl who was raped, and a guide to the self-examination of testicular cancer. There is an uncertainty about how to define close to obscene material that may be on the border of being defined as indecent.
Age Verification: Age screening could lead to embarrassment in some users. This requires all adults to enter a credit card number or age verification number, even if they are childless. Problem: Children may obtain a parents credit card number, if desired.
Decision: COPA should be enjoined because the statute likely violates the first amendment. There are less restrictive alternatives to COPA. Blocking and filtering software are less restrictive. Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Childless adults can access information they have a right to see without having to identify themselves. Adults with children may turn off their filters to access material they wish to view. Congress passed two more less restrictive alternatives to COPA: the prohibition of misleading domain names and the minor safe “dot-kids” domain name. Blocking and filtering software also blocks all pornography (40% of content deemed harmful to minors comes from overseas).
A large portion of the opinion of this brief involved the opinions of those who dissent from the decision the court has made, or who disagree with it. Several justices in this case filed opinions concurring in the judgment, and for many different reasons. Several justices joined in disagreement with the court’s decision to invoke an injunction on the Child Online Protection Act.
They argued that Congress could not have possibly achieved its statutory objective in another, less restrictive way, that COPA did not impose a large amount of limits on free speech, and that the Act was tailored to fit a compelling interest . The reasons they give are as follows:
Filters are among the suggested methods of using less restrictive means to protect minors from “harmful” content. However, currently-available filtering technology is lacking in several different ways:
Justice Breyer then argues a second point: The court had decided that the Act was not narrowly tailored to fit Congress’s “compelling interest”, or its intended objective. This means that the court deemed that COPA included too large a scope of regulated content to be determined constitutional under the First Amendment, and in turn it was not capable of achieving Congress’s goal of protecting minors from harmful online content. Justice Breyer argues the contrary.
In Justice O'Connor's concurrence, she says that the Act as "properly interpreted" imposes “only a modest burden on protected speech”. She uses the Miller v. California case to highlight this. Comparing the Miller precedent’s definition of what is deemed legally obscene, she shows how COPA’s terminology is extremely similar to that of the Miller case. She argues that “the only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors”, and “for minors”, and that this broadens the Act’s scope only slightly.
She also argues that the Act was tailored to fit a compelling interest, and that the use of “alternative” and “less restrictive” regulation such as filters was not tailored to fit a compelling interest, and she in fact argued that filters are the “status quo”. She argues that filters, as they are readily available now, do not further Congress’s goals in any way, and in turn do not pursue a compelling interest. Sticking with the “status quo” is always easier, but it does not further the goal, and it only allows the problem to perpetuate. She gives the example of “despite the present existence of filtering software, children are still gaining access to harmful material”.
She says that the court should not have asked whether the Act uses the least restrictive means possible to protect minors from harmful content, but whether it advances Congress's goals?
She concludes that COPA does not enact major burdens on free speech when it is properly interpreted. That it “significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography”. And that there is no “practically available, less restrictive way similarly to further this compelling interest.”