To Minors.Com: an Analysis of Congress
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WWW.HARMFUL TO MINORS.COM: AN ANALYSIS OF CONGRESS' ATTEMPTS TO REGULATE PORNOGRAPHY ON THE INTERNET by JAMES BRENDAN GALLAGHER (Under the Direction of William E. Lee) ABSTRACT This study examines the constitutionality of the Communications Decency Act of 1996, the Child Online Protection Act, and the Children's Internet Protection Act in terms of the evidence used to justify the acts, the scope of the acts to Web sites for commercial purposes, and the application of strict scrutiny by the District Court while reviewing CIPA. Court decisions, congressional records and hearings, and Supreme Court briefs were reviewed to determine the manner in which Congress created and justified each act and the courts’ respective responses. Findings show that while Congress did not provide evidence justifying each act, the limitation of COPA to Web sites for commercial gain was incorrect, and strict scrutiny was correctly applied by the District Court in American Library Association. Future studies could include the Supreme Court's evaluation of the constitutionality of COPA and CIPA. INDEX WORDS: Reno v. ACLU, Ashcroft v. ACLU, American Library Association, Inc. v. United States, Communications Decency Act, Child Online Protection Act, Children's Internet Protection Act, Content Based, Strict Scrutiny, Obscenity, Indecency, Harmful to Minors, Internet, Pornography, Congressional Evidence, Commercial Speech, Speech for Commercial Purposes, Narrowly Tailored, Compelling Interest. WWW.HARMFUL TO MINORS.COM: AN ANALYSIS OF CONGRESS' ATTEMPTS TO REGULATE PORNOGRAPHY ON THE INTERNET by JAMES GALLAGHER B.A., Boston College, 2001 A Thesis Submitted to the Graduate Faculty of The University of Georgia in Partial Fulfillment of the Requirements for the Degree MASTERS OF ARTS ATHENS, GEORGIA 2003 © 2003 James Brendan Gallagher All Rights Reserved WWW.HARMFUL TO MINORS.COM: AN ANALYSIS OF CONGRESS' ATTEMPTS TO REGULATE PORNOGRAPHY ON THE INTERNET by JAMES BRENDAN GALLAGHER Major Professor: William E. Lee Committee: Janice Hume Elli Lester Roushanzamir Electronic Version Approved: Maureen Grasso Dean of the Graduate School The University of Georgia May 2003 iv ACKNOWLEDGEMENTS I wish to extend my deepest thanks and appreciation to my advisor, William E. Lee, who guided me through this thesis. Dr. Lee taught me not only how to find and understand congressional records and Supreme Court decisions, but to critically analyze and interpret those texts. I would like to thank my parents, Mark and Phyllis, for supporting me in my decision to attend graduate school. I know they were surprised when I told them, after three-and-a-half years studying economics, that I did not wish to pursue a career on Wall Street, but rather a career as a writer. I doubt many parents would have been so understanding. I would also like to thank Mandy Hall for her support and guidance during the writing of this thesis. Mandy's encouragement helped me keep writing when I started to feel burned out. I also want to thank Mandy for reading and editing this, even though I'm sure she didn't enjoy it. Finally, I would like to thank my committee members Janice Hume and Elli Lester Roushanzamir for their time and guidance during this lengthy project. v TABLE OF CONTENTS Page ACKNOWLEDGEMENTS............................................................................................... iv CHAPTER 1 INTRODUCTION .............................................................................................1 Background ...................................................................................................2 Review of Relevant Literature ....................................................................17 Purpose and Research Questions.................................................................37 2 CONGRESS' EVIDENCE...............................................................................42 Communications Decency Act....................................................................43 Child Online Protection Act........................................................................50 Children's Internet Protection Act ...............................................................53 Does Congress Really Need Evidence? ......................................................58 3 SPEECH FOR COMMERCIAL GAIN...........................................................64 Commercial Speech v. Speech for Commercial Purposes ..........................65 Court's Basis for Justifying Regulations on Commercial Web Sites ..........67 Why was COPA Amended to Regulate Only For-Profit Web Sites on the World Wide Web?.................................................................................71 Precedent the Supreme Court Should Have Cited.......................................74 4 STRICT SCRUTINY ANALYSIS..................................................................80 Levels of Scrutiny .......................................................................................81 vi Application of Strict Scrutiny in Similar Cases ..........................................82 Strict Scrutiny as applied by the Court of Appeals in ACLU v. Ashcroft....89 The District Court's Rationale for Applying Strict Scrutiny to CIPA and the Government's Counter Argument before the Supreme .........................93 The District Court's Application of Strict Scrutiny to CIPA and the Government's Pursuant Argument Against to the Supreme................108 Conclusion.................................................................................................117 5 CONCLUSION: THE FIRST AMENDMENT LIMITS ON REGULATING INTERNET PORNOGRAPHY ................................................................120 The Medium of Expression .......................................................................120 The Type of Regulation.............................................................................124 Compelling Interest ...................................................................................125 Narrow Tailoring.......................................................................................127 Limitations of this Study and Suggestions for Future Research ...............132 REFERENCES ................................................................................................................133 APPENDICES A Relevant Terms ..............................................................................................138 B Overview of Key Supreme Court Opinions...................................................140 CHAPTER 1 INTRODUCTION "It is no exaggeration to say that the most disgusting, repulsive pornography is only a few clicks away from any child with a computer."1 Sen. Jim Exon (D - Nebraska) spoke those words on the floor of Congress as he garnered support for his proposed Communications Decency Act of 1996 (CDA). In 1995, while the popularity of the Internet was not widespread (the World Wide Web was only four years old), Senator Exon and Congress found the threat of Internet pornography so insidious they believed it was necessary for Congress to intervene to protect the well-being of minors. Federal courts, however, have not found Internet pornography so problematic as to justify the acts created by Congress, and have overturned or remanded each act. Why has each attempt by Congress to regulate the content of the Internet been deemed unconstitutional by the courts? Seven years have now passed since Congress initially enacted the CDA, and the battle over Internet pornography is still raging; the Supreme Court decided in 2002 to remand Ashcroft v. ACLU to the Third Circuit for a determination of the Child Online Protection Act's (COPA) constitutionality, and the Supreme Court will review the Children's Internet Protection Act (CIPA) in 2003. These decisions lead us to some intriguing questions: What are the First Amendment's limits for regulating the content of the Internet? Has Congress proven the sexual content of the Internet is harmful to minors? What is Congress' understanding of the First Amendment? How have the courts applied the First Amendment to the Internet? 1 141 CONG. REC. 16009 (daily ed. June 14, 1995) (statement of Sen. Exon). 1 2 What must Congress do to regulate pornography on the Internet? By the end of this study, I will propose answers to these questions. In this chapter, I provide a framework from which the rest of my thesis will develop. I begin by providing a brief history of the Internet, highlighting major advancements in technology and the growth of the Internet's appeal to the masses. Next a discussion of the status of pornography on the Internet is provided. Each of the three acts, the CDA, COPA, and CIPA, are summarized including the judicial response to each. In addition, I discuss relevant Supreme Court decisions regarding indecent material and the protection of children. Also, I review some of the relevant literature written by legal critics concerning their opinions on each of the court's decisions. Background History of the Internet The first computer-to-computer connection occurred in 1965 when Larry Roberts, in Boston, Massachusetts, used telephone lines to link his computer to another computer located in Santa Monica, California.2 Soon after, the forerunner to the Internet was created in 1969 by the Defense Department in the form of its ARPAnet. The Advanced Research Projects Agency (ARPA) was created by President Dwight D. Eisenhower in 1958 and was designed to advance the United States' military might during the Cold War.3 "ARPA