High Court ruling boosts Internet filters

Some Good Bits from the ruling
Most interesting, I thought, was the dissenting opinion that “Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review.”

So what did they really rule?
Held: The Third Circuit was correct to affirm the District Court’s ruling
that enforcement of COPA should be enjoined because the statute
likely violates the First Amendment. They re-mand the case so that it may be returned to the District Court for trial on the issues presented.
And so why?
The Court of Appeals, in its opinion affirming the decision of the District Court, con-strued a number of terms in the statute, and held that COPA, so construed, was unconstitutional. None of those constructions of statutory terminology, however, were relied on by or necessary to the conclusions of the District Court. Instead, the District Court concluded only that the statute was likely to burden some speech that is protected for adults, 31 F. Supp.2d, at 495, which petitioner does not dispute. As to the definitional disputes, the District Court concluded only that respondents’ interpretation was “not unreasonable,� and relied on their interpretation only to conclude that respondents had standing to challenge the statute, id., at 481, which, again, petitioner does not dis-pute.

COPA was enacted in response to Reno v. American Civil Liberties Union, 521 U. S. 844, in which this Court held that the Communications Decency Act of 1996, Congress’ first at-tempt to make the Internet safe for minors by criminalizing certain Internet speech, was unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available.

Respondents, Web speakers and others concerned with protecting the freedom of speech, filed suit for a preliminary injunction against COPA’s enforcement. After con-sidering testimony presented by both respondents and the Govern-ment, the District Court granted the preliminary injunction, conclud-ing that respondents were likely to prevail on their argument that there were less restrictive alternatives to COPA, particularly blocking or filtering technology. …COPA was not the least restrictive means available for the Government to serve the interest of preventing mi-nors from using the Internet to gain access to harmful materials.

So why did they rule this way?
The District Court concentrated primarily on the argument that there are plausible, less restrictive alternatives to COPA. See Reno, 521 U. S., at 874. When plaintiffs challenge a content-based speech restriction, the Government has the burden to prove that the proposed alternatives will not be as effective as the challenged stat-ute. Ibid. The purpose of the test is to ensure that speech is re-stricted no further than is necessary to accomplish Congress’ goal. The District Court’s conclusion that respondents were likely to pre-vail was not an abuse of discretion, because, on the record, the Gov-ernment has not met its burden.

Most importantly, respondents pro-pose that blocking and filtering software is a less restrictive alternative, and the Government had not shown it would be likely to disprove that contention at trial. Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, childless adults may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Promoting filter use does not condemn as criminal any category of speech, and so the po-tential chilling effect is eliminated, or at least much diminished. Fil-ters, moreover, may well be more effective than COPA. First, the re-cord demonstrates that a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. That COPA does not prevent minors from accessing foreign harmful materials alone makes it possible that filtering software might be more effective in serving Congress’ goals. COPA’s effectiveness is likely to diminish even further if it is upheld, because providers of the materials covered by the statute simply can move their operations overseas.

Finally, filters also may be more effective because they can be applied to all forms of Internet communi-cation, including e-mail, not just the World Wide Web. Filtering’s superiority to COPA is confirmed by the explicit findings of the Commission on Child Online Protection, which Congress created to evaluate the relative merits of different means of restricting minors’ ability to gain access to harmful materials on the Internet.

Although filtering software is not a perfect solution because it may block some materials not harmful to minors and fail to catch some that are, the Government has not satisfied its burden to intro-duce specific evidence proving that filters are less effective. The ar-gument that filtering software is not an available alternative because Congress may not require its use carries little weight, since Congress may act to encourage such use by giving strong incentives to schools and libraries, United States v. American Library Assn., Inc., 539 U. S 194, and by promoting the development of filters by industry and their use by parents. The closest precedent is United States v. Play-boy Entertainment Group, Inc., 529 U. S. 803, which, like this case, involved a content-based restriction designed to protect minors from viewing harmful materials. The Court there concluded that, absent a showing that a less restrictive technological alternative already available to parents would not be as effective as a blanket speech re-striction, the more restrictive option preferred by Congress could not survive strict scrutiny. Id., at 826. The reasoning of Playboy Enter-tainment Group, and the holdings and force of this Court’s prece-dents, compel the Court to affirm the preliminary injunction here. To do otherwise would be to do less than the First Amendment com-mands. Id., at 830. Pp. 6–12.

Important practical reasons also support letting the injunction stand pending a full trial on the merits. First, the potential harms from reversal outweigh those of leaving the injunction in place by mistake. Extraordinary harm and a serious chill upon protected speech may result where, as here, a prosecution is a likely possibility but only an affirmative defense is available, so that speakers may self-censor rather than risk the perils of trial. The harm done from letting the in-junction stand pending a trial on the merits, in contrast, will not be extensive. Second, there are substantial factual disputes remaining in the case, including a serious gap in the evidence as to the filtering software’s effectiveness. By allowing the preliminary injunction to stand and remanding for trial, the Court requires the Government to shoulder its full constitutional burden of proof respecting the less re-strictive alternative argument, rather than excuse it from doing so. Third, the factual record does not reflect current technological real-ity—a serious flaw in any case involving the Internet, which evolves at a rapid pace. It is reasonable to assume that technological devel-opments important to the First Amendment analysis have occurred in the five years since the District Court made its factfindings.

So, what does Jennedy, and the majority have to say?
Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that con-tent-based restrictions on speech be presumed invalid, R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992), and that the Government bear the burden of showing their constitu-tionality. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000). This is true even when Congress twice has attempted to find a constitutional means to restrict, and punish, the speech in question.

The Govern-ment has failed, at this point, to rebut the plaintiffs’ con-tention that there are plausible less restrictive alternatives to the statute. Substantial practical consid-erations, furthermore, argue in favor of upholding the injunction and allowing the case to proceed to trial.

The Court held the CDA unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available.

The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them. The District Court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the Government had not shown it would be likely to disprove the plaintiffs’ contention at trial. Ibid.
Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify them-selves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornog-raphy, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas. Id., at 484. COPA does not prevent minors from having access to those foreign harm-ful materials. That alone makes it possible that filtering software might be more effective in serving Congress’ goals. Effectiveness is likely to diminish even further if COPA is upheld, because the providers of the materials that would be covered by the statute simply can move their operations overseas. It is not an answer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would reach more of them than less restrictive alternatives. In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards. See id., at 484, 496–497. Finally, filters also may be more effective be-cause they can be applied to all forms of Internet commu-nication, including e-mail, not just communications avail-able via the World Wide Web.

Whatever the deficiencies of fil-ters, however, the Government failed to introduce specific evidence proving that existing technologies are less effec-tive than the restrictions in COPA.

It is not enough for the Government to show that COPA has some effect. Nor do respondents bear a burden to introduce, or offer to introduce, evidence that their proposed alternatives are more effective. The Government has the burden to show they are less so. The Government having failed to carry its burden, it was not an abuse of discretion for the District Court to grant the preliminary injunction.

The technology of the Inter-net evolves at a rapid pace. Yet the factfindings of the District Court were entered in February 1999, over five years ago. Since then, certain facts about the Internet are known to have changed.

From Stevens and Ginsburg: who are concuring …even full compli-ance with COPA cannot guarantee freedom from prosecu-tion. Speakers who dutifully place their content behind age screens may nevertheless find themselves in court, forced to prove the lawfulness of their speech on pain of criminal conviction. Criminal prosecutions are, in my view, an inappropriate means to regulate the universe of materials classified as “obscene,â€? since “the line between communications which ‘offend’ and those which do not is too blurred to identify criminal conduct.â€?

COPA’s crea-tion of a new category of criminally punishable speech that is “harmful to minors� only compounds the problem.

I find it impossible to identify just how far past the already ill-defined terri-tory of “obscenity� he thinks the statute extends. Attach-ing criminal sanctions to a mistaken judgment about the contours of the novel and nebulous category of “harmful to minors� speech clearly imposes a heavy burden on the exercise of First Amendment freedoms.

As a parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, how-ever, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children’s viewing habits.

Now, Scalia, dissenting:

Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review. “We have recognized that commercial entities which engage in ‘the sordid business of pandering’ by ‘deliberately emphasiz[ing] the sexually pro-vocative aspects of [their nonobscene products], in order to catch the salaciously disposed,’ engage in constitutionally unprotected behavior.� There is no doubt that the commercial pornography covered by COPA fits this description. The statute applies only to a person who, “as a regular course of such person’s trade or business, with the objective of earning a profit,� 47 U. S. C. §231(e)(2)(B), and “with knowledge of the character of the material,� §231(a)(1), communicates material that depicts certain specified sexual acts and that “is designed to appeal to, or is designed to pander to, the prurient interest,� §231(e)(6)(A). Since this business could, consistent with the First Amendment, be banned entirely, COPA’s lesser restrictions raise no constitutional concern.

And Bryer, rehnquist and O’Connor, again, dissenting:

I cannot accept its conclusion that Congress could have accomplished its statutory objective—protecting children from commercial pornography on the Internet—in other, less restrictive ways. Although the Court rests its conclusion upon the exis-tence of less restrictive alternatives, I must first examine the burdens that the Act imposes upon protected speech. That is because the term “less restrictive alternative� is a comparative term. An “alternative� is “less restrictive� only if it will work less First Amendment harm than the statute itself, while at the same time similarly furthering the “compelling� interest that prompted Congress to enact the statute. Unlike the majority, I do not see how it is possible to make this comparative determination without examining both the extent to which the Act regulates protected expression and the nature of the burdens it imposes on that expression. That examination suggests that the Act, properly interpreted, imposes a burden on protected speech that is no more than modest.

And again, agreeing with Scalia:
The Act’s definitions limit the material it regulates to material that does not enjoy First Amendment protection, namely legally obscene material, and very little more. A comparison of this Court’s definition of unprotected, “legally obscene,� material with the Act’s definitions makes this clear.
Material is legally obscene if
“(a) . . . ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) . . . the work depicts or describes, in a patently of-fensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work, taken as a whole, lacks serious literary, artistic, political, or sci-entific value.� Miller v. California, 413 U. S. 15, 24 (1973). The present statute defines the material that it regulates as material that meets all of the following criteria:
“(A) the average person, applying contemporary com- munity standards, would find, taking the material as a whole and with respect to minors, [that the material] is designed to appeal to, or is designed to pander to, the prurient interest; “(B) [the material] 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 fe- male breast; and “(C) [the material] taken as a whole, lacks serious lit- erary, artistic, political, or scientific value for minors.� 47 U. S. C. §231(e)(6) (emphasis added).
Both definitions define the relevant material through use of the critical terms “prurient interest� and “lacks serious literary, artistic, political, or scientific value.� Insofar as material appeals to, or panders to, “the prurient interest,� it simply seeks a sexual response. Insofar as “patently offensive� material with “no serious value� sim-ply seeks that response, it does not seek to educate, it does not seek to elucidate views about sex, it is not artistic, and it is not literary.

The only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors,� The “lack of serious value� requirement narrows the statute yet further—despite the presence of the qualifica-tion “for minors.� That is because one cannot easily imagine material that has serious literary, artistic, politi-cal, or scientific value for a significant group of adults, but lacks such value for any significant group of minors. Thus, the statute, read literally, insofar as it extends beyond the legally obscene, could reach only borderline cases. And to take the words of the statute literally is consistent with Congress’ avowed objective in enacting this law; namely, putting material produced by profes-sional pornographers behind screens that will verify the age of the viewer.

These limitations on the statute’s scope answer many of the concerns raised by those who attack its constitution-ality. Respondents fear prosecution for the Internet post-ing of material that does not fall within the stat-ute’s ambit as limited by the “prurient interest� and “no serious value� requirements; for example: an essay about a young man’s experience with masturbation and sex-ual shame; “a serious discussion about birth control practices, homosexuality, . . . or the consequences of prison rape�; an account by a 15-year-old, written for therapeutic purposes, of being raped when she was 13; a guide to self-examination for testicular cancer; a graphic illustration of how to use a condom; or any of the other postings of modern literary or artistic works or discus-sions of sexual identity, homosexuality, sexually trans-mitted diseases, sex education, or safe sex, let alone Aldous Huxley’s Brave New World, J. D. Salinger’s Catcher in the Rye, or, as the complaint would have it, “Ken Starr’s report on the Clinton-Lewinsky scan-dal.�