A Constitutionally Protected Right to Market Pornography to Children?
Posted on March 22, 2007
A federal district judge has recently ruled that the Children’s Online Protection Act is an unconstitutional suppression of free speech. The law requires porn site operators to verify that patrons are 18 years old before giving them access to pornography. The lawsuit, brought by the ACLU on behalf of several sexual health sites and salon.com, states that this is a burdensome requirement and has a chilling effect on free speech. This position is absurd.
The law has been in effect now for 9 years. There is a clear track record to how the law is applied and to what content it applies to. If the law was signed 9 days ago, one could make a claim about a potential problem. However, after 9 years there have been apparently no cases in which a legitimate sexual health site has been prosecuted or that other speech has been curtailed.
More importantly, this law requires no change to the content of these websites. People remain as free before and after this law to peddle pornography. The law is only a regulatory requirement on how the content is accessed not on what content can be produced. It is a rather silly argument that sexual health sites would be blocked when they contain similar content as most comprehensive sexual education classes in public schools taught to 7th graders.
There is no apparent evidence that any sexual health site has been shut down because of this law. Even more apparent is that salon.com (a news and commentary site) has never been targeted by this law. It says something that salon.com is concerned about an on-line porn law, and I’m not sure it’s the message they want to convey. Apparently political pornography is not limited to Rush Limbaugh anymore.
The ACLU, apparently, agrees that there is a legitimate interest in keeping minors from pornography. They simply argue it would be a better policy to have parents install internet filters on their computer. This would help if parents controlled every computer a child might access.
Considering that a majority of home computers on the internet don’t even have anti-virus installed, however, means that likely parents, as a rule, aren’t technically proficient to install and maintain these filters, much less keep their technically-savvy children from bypassing those filters. They do make a good point that parents should be responsible for what children see online, but that point should be made to the Legislature not the Judiciary.
The argument that the law is burdensome on websites is simply false. After a one-time installation of the software and arranging a credit-card verification system (that would likely have to be in place anyway considering most porn sites are in the business of making money), there is next to no maintenance on such software. The burden is on the consumer to enter their information. That burden is about 30 seconds. It is hard to see what the entire weight of the US Constitution needs to be brought to bear to save internet chat room perverts 30 seconds in getting to their porno.
The most dangerous thing about this lawsuit and those like it, is that it is an obvious usurpation of the Legislature. By taking this case to court, there are only two parties who get to influence the outcome, one solitary lobbying group (the ACLU) and a government lawyer who is accountable to no voter. The ACLU could have lobbied Congress to change the law, they have not. Since the argument isn’t over the right of children to access porn, but for regulation on how a website distributes content, it is obviously a political question that has no place in the courts. No one seems to be arguing that children have an absolute right to pornography; it is simply the means by which their viewing can be restricted.
The constant running to a court to change democratically passed laws indicates contempt for the voters of this nation. Yet again, the ACLU has created another issue in which the voters cannot be trusted. The issue of how children should be restricted from access to pornography could easily be solved in the legislature, apparently voters and legislators can’t be trusted to act appropriately. So much for freedom.
After 9 years of this law being in place, there is no reason to strike it down for “chilling” free speech that is in no way regulated by this law. There is no legitimate fear that sexual health information will be restricted. There is certainly no fear that political pornographers will be taken offline. This is a brazen attempt by the ACLU to end-run the legislative process and the will of the voters to impose values on America that Americans obviously don’t want.
John Bambenek is the Assistant Politics Editor for BC Magazine and is an academic professional for the University of Illinois. He is a syndicated columnist who blogs at Part-Time Pundit and the executive director of The Tumaini Foundation which helps AIDS orphans and other children in Tanzania to get an education.
He is the current owner of BlogSoldiers, a blog-only traffic exchange.
» Filed Under 1st Amendment, ACLU, Child Exploitation, News
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Just a few comments. First, the law has never been enforced because it has always been under a restraining order. So, any suggestion that the failure of the government to prosecute Salon proves that there is no danger from a vague and overbroad law is pretty silly. Second, if the voters really want to pass a law that does this, all they have to do is pass a Constitutional Amendment by 2/3ds of both chambers and then get it approved by 3/4 of the states. Third, the lone government lawyer? He’s backed by an organization (the Department of Justice) that is bigger and has more resources than the world’s largest law firms. They dwarf the ACLU many, many times over.
Passing clearly unconstitutional laws over and over, forcing the ACLU to run to court to challenge them, indicates contempt for the Constitution.
Question Greg with no link -
Where in Article III of the United States Constitution is legislative review granted to the federal judiciary?
As far as Constitutional issues… Justice White in NY v Ferber had this to say when upholding a NY law banning the sale and distribution of child porn being argued by the ACLU…
“…the Court squarely held in Roth v. United States, 354 U.S. 476 (1957), that “obscenity is not within the area of constitutionally protected speech or press.” Id., at 485. The Court recognized that “rejection of obscenity as utterly without redeeming social importance” was implicit in the history of the First Amendment: The original States provided for the prosecution of libel, blasphemy, and profanity, and the “universal judgment that obscenity should be restrained [is] reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws enacted by Congress from 1842 to 1956.” Id., at 484-485″
Roth was followed by 15 years during which this Court struggled with “the intractable obscenity problem.” Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (opinion of Harlan, J.). See, e.g., Redrup v. New York, 386 U.S. 767 (1967). Despite considerable vacillation over the proper definition of obscenity, a majority of the Members of the Court remained firm in the position that “the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.” Miller v. California, supra, at 18-19; Stanley v. Georgia, 394 U.S. 557, 567 (1969); Ginsberg v. New York, 390 U.S. 629, 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup v. New York, supra, at 769; Jacobellis v. Ohio, 378 U.S. 184, 195 (1964).
Throughout this period, we recognized “the inherent dangers of undertaking to regulate any form of expression.” Miller v. California, supra, at 23. Consequently, our difficulty was not only to assure that statutes designed to regulate obscene materials sufficiently defined what was prohibited, but also to devise substantive limits on what fell within the permissible scope of regulation. In Miller v. California, supra, a majority of the Court agreed that a “state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Id., at 24. Over the past decade, we have adhered to the guidelines expressed in Miller, which subsequently has been followed in the regulatory schemes of most States.”
We get bombarded every day with spam emails, trackback spam, comment spam, all consisting of sexually explicit material. Because one of my email addresses is published on this site in order to recruit members to the Stop the ACLU Blogburst, that email gets literally saturated with porn spam. What is currently available to protect children from this type of exposure? This law which has been on hold by various courts since passage was a way to combat that. But, the ACLU and idiots who believe like Greg does basking in the thrill of moronic bliss, have led to the suspension and now unconstitutional overturning of a legitimately passed law.
To answer my question from the first comment I made, the answer is no where in Article III does the federal judiciary have the responsibility for legislative oversite.
If that was jcb’s argument, he should have written a post decrying judicial review instead of the fallacious arguments he used.
You can oppose judicial review if you want, but it’s been around for quite some time and the people haven’t made any effort to eliminate it, as it’s generally accepted as a necessary part of that whole “checks and balances” thing.
COPA isn’t limited to obscene speech; it covers a lot of protected speech as well.
Client-side filtering. It’s easy to do and it’s very effective if you get decent software. My address is also publicly available and with the default configuration, I get maybe one or two per week in my inbox. I could make it even more restrictive, but the emails don’t offend me and I don’t want to deal with the occasional false-positive.
“Where in Article III”
That ship has sailed. 204 years ago. It’s called Marbury v. Madison. Maybe you should read it again. I’m sorry you flunked law school. Do you really think that as a law school failure you should be commenting on what is constitutional or not?
After reading Marbury, why don’t you read THIS case. It’s not about protecting child-porn.
The case isn’t even about protecting obscenity, or porn, or anything like that. The case is about protecting speech that is perfectly legal for adults to say, write or disseminate amongst themselves but which might, if you look at it with your eyes all squinty and your head cocked to the right angle, be considered harmful to children.
What’s harmful to children? Who knows. That’s why the law is vague. You can’t just ban bad speech, if we could, then you guys might have something to fear from so-called “hate crime” laws.
Greg, you are full of it. The law was not vague, and it was about restricting minors from access because of the deleterious effects of pornography on children. If you had a clue about raising kids (which you don’t), you would not question the need for such reasonable restrictions.
By the way, what do you think is the “speech” in pornography? To the Founding Fathers, it would be considered license well outside the scope of the First Amendment. What has happened is that the Constitution has been hijacked by what would more than disgust George Washington.
There is a need for reform of constitutional doctrine. This kind of decision should not happen.
I see the cluelessness in the post and comments has already been dealt with. #1, this isn’t about obscenity. #2, judicial review (not “legislative review”) is a well established and integral part of our constitutional system. If its not enough for you to read sections 1 and 2 of article III, (”the judicial power …shall be vested vested in…” and “the judicial shall extend to all cases..”)
And if you can’t figure this out for yourself, J. Marshall explained it in Marbury v. Madison
Quote all you want Greg with no link, if the courts decide law that they had no business deciding in the first place, is it actually valid. Ask yourself that.
We allow these judges to overstep their bounds constantly. As in the case you cited.
I’ll trump that case by saying this…
Article I
Section 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Where, is the power of oversite for legislation? If I’m not mistaken, that power lies solely in the President in his power to veto. Keep in mind, that a Republican Congress passed this legislation and it was signed into law by an ultra liberal Democrat President. How much more bipartisan do you need to be. The courts had NO Business under Article III to even hear the case.
Do I necessarily have to pass the bar to understand a document written in plain English? That is why it is written in plain English, so you don’t need a law degree to understand it. This is what confuses those who do have law degrees. They don’t understand plain English.
That said, Greg with no link, you must be a lawyer. And if so, understand this… We are under no obligation to permit you to post a comment here. And I have the ability to edit, manipulate, alter, or delete any comment I wish. While you are looking for some over-thought response to this fact, check the right sidebar, you’ll see that I’m listed - and an administrator at that.
Suggestion… if you don’t have a website of your own to attach to your comments… Shut up! Comments are a luxury. Do not abuse it.
William Shakespeare wrote in Henry VI Part II Scene IV Act II:
DICK
The first thing we do, let’s kill all the lawyers.
CADE
Nay, that I mean to do. Is not this a lamentable
thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled
o’er, should undo a man? Some say the bee stings:
but I say, ’tis the bee’s wax; for I did but seal
once to a thing, and I was never mine own man
since. How now! who’s there?
I think there is some merit to that idea…
http://www.paed.uscourts.gov/documents/opinions/07D0346P.pdf
As the court noted on page 62 (”There has never been any question that the interest espoused by Congress, as related to this court by defendant of “protecting minors from exposure to sexually explicit material on the World Wide Web†is a compelling interest.”), that point is undisputed. Good intentions are not enough, though.
The requirements of the law are very specific, but the application of it are not.
Page 59-60: “As this court has found previously and today, and as the Third Circuit observed, there is nothing in the language of COPA which limits its reach to commercial pornographers. COPA clearly covers far more speakers on the Web than those who might be defined as commercial pornographers; and (2) defendant contends and, thus, admits that the plaintiffs are not commercial pornographers.”
Page 62: “Because COPA suppresses a large amount of speech that adults have a constitutional right to receive, under the strict scrutiny standard, COPA may only be upheld as constitutional if defendant meets his burden of proving that COPA is narrowly tailored to the compelling interest that COPA was enacted to serve and there are no less restrictive alternatives that would be at least as effective in achieving that interest.”
Page 62: “Due to the broad definitions and provisions of COPA, COPA prohibits much more speech than is necessary to further Congress’ compelling interest. For example, as discussed above in Conclusions of Law 3 and 4, the definitions of “commercial purposes†and “engaged in the business†apply to an inordinate
amount of Internet speech and certainly cover more than just commercial pornographers, contrary
to the claim of defendant. Moreover, as discussed below in Conclusions of Law 42 and 49, the
fact that COPA applies to speech that is obscene as to all minors from newborns to age sixteen,
and not just to speech that is obscene as to older minors, also renders COPA over-inclusive. See ACLU, 322 F.3d at 253-254 (noting that the term “minor†in COPA applies to “an infant, a fiveyear
old, or a person just shy of age seventeenâ€).”
Bottom line: COPA tried to fix the problem with a battleaxe. The court said, “Try again, using a scalpel this time.”
I’m a lawyer. Do you want to kill me gribbit? you’ll still be wrong.
Leaving aside the tacit death threat, I’m intrigued. Gribbit, since you reject John Marshall’s reasoning that when the Constitution and a statute are in conflict that the Constitution (as supreme law of the land) should prevail what role do you think the Constitution should play? I would note, for example, that on the front page of STACLU right now is a post arguing, in part, that the Hate Crimes Bill would be unconstitutional if passed by Congress since it infringes on the right of free speech. Let’s say that’s the case and it’s passed. Then what? The court has to apply it and we hope that the Democrats are thrown out of power so that the unconstitutional law can be overturned?
Is it really your belief that Congressional statute trump the Constitution? (What about when Democrats are in control?)
Obviously, Greg had no response to my question.
No, Phil, I do have an answer, I was just worried that gribbit would “edit, manipulate, alter, or delete” my answer.
Your question was, “what do you think is the “speech†in pornography?”
There is little to no speech in porn, that’s why it can be constitutional to ban it. This law, however, while it intended to focus on porn, swept up non-porn into its coverage.
Take a look at this site, for example. Look to the right and left of the page. See those ads? That puts this site within the definition of a commercial site for purposes of the legislation. Now pretend for a second that the argument here got heated and obscenities were exchanged. That could qualify under the law as “harmful to minors.” Then this website would have to have an credit-card-based age-verification process or face criminal prosecution. (Ironically, there’s a safe haven for forums where there is no selection of posts, but gribbit’s declaration that he can edit, manipulate or alter posts puts him outside that safe haven.)
Why do you think that in order to get rid of porn, we should incarcerate adults who engage in frank discussions? Especially when there are alternatives out there that might not infringe on constitutional discussions?