CENSORSHIP OUTLINE
 
 
  1. RENO v. ACLU
    1. District Court finds CDA unconstitutional
    1. Chief Judge Sloviter
    1. Government has compelling interest to "some" material on the internet
    2. Statute too broad and "sweeps more broadly than necessary and thereby chills the expression of adults"
    3. Terms "indecent" and "patently offensive" were "inherently vague"
    1. Judge Buckwalter
    1. Terms "indecency" and "patently offensive" too broad for criminal statute.
    2. No statutory basis for contention that statute only applied to obscene and not pornographic materials.
    3. Nature of the Internet aggravated vagueness of statute.
    1. Judge Dalzell
    1. Need "medium specific" First Amendment law for internet
    2. Canít rely on past precedent to determine decency laws for internet
    1. Supreme Courtís Reasoning
    1. Precedent relied on by Government
    1. Ginsberg v. New York
    1. Statute criminalizing the sale of pornographic materials to minors under 17
    2. Distinguished on 4 grounds
    1. Ginsberg did not bar parents from buying materials for their minors
    2. Applied only to commercial transactions
    3. Must be "utterly without redeeming social importance for minors"
    1. CDA did not define "indecent" or "patently offensive"
    2. Not based on "contemporary community standards
    1. Ginsberg applied to minors under 17 years of age
    1. Pacifica v. FCC
    1. George Carlin - Filthy words broadcast
    2. Indecent in "BROADCAST"
    3. Distinguished
    1. Broadcast had been regulated for decades by agencies
    2. CDA not limited to particular time or medium of broadcast
    3. Internet no history of being treated like broadcast medium
    1. Renton v. Playtime Theaters
    1. "Zoning ordinances" preventing adult theaters locations
    2. To deter "secondary effects" Ė drugs, crime, etc
    3. Government contended "cyberzoning"
    1. No because CDA = primary effect of prohibiting speech
    1. Broadcasting Medium?
    1. Factors are not present in cyberspace
    2. Sable v. FCC
    1. Dial-a-porn
    2. Upheld as to obscene messages but not to indecent messages
    1. Non-Intrusive
    1. User must take affirmative steps to get porn
    2. Doesnít just appear
    1. Not a "scarce commodity"
    1. Broadcast medium is limited availability
    2. Internet can be used at relatively low costs by general public
    1. Ambiguities
    1. In lack of definition of Indecent or Patently Offensive
    1. Content Based Restriction
    1. 1. Impermissible chilling effect due to lack of definition
    2. 2. Criminal prosecution available à more definite defintions needed
    1. Miller v. California
    1. 3 prong test
    2. CDA adopted second prong only less the "contemporary community standards" language
    1. A single prong by itslef could be unconstitutional
    2. Lack of "contemporary community standards" language = attempt to create nationwide moral guideline
    1. Impermissable due to the cultural differences in our nation
    1. Prohibits Adults from viewing Constitutionally protected materials
    1. Legitimate Interest to prohibit children from seeing
    2. BUT results in prohibition to adults as well
    3. NOT a sufficient interest, canít lower morality to the level of minors
    4. NO existing technology to filter
    1. AVS/Credit card verification
    1. Not feasible for small site users
    2. Canít really verify who other person is
    1. Good Faith Defense
    1. Illusory due to anonymity of internet
II COPA
    1. Part of CDA II
    1. Differences in langauge
    2. Used Reno as "safe harbor"
    3. Text
a. ``SEC. 231. RESTRICTION OF ACCESS BY MINORS TO MATERIALS COMMERCIALLY DISTRIBUTED BY MEANS OF WORLD WIDE WEB THAT ARE HARMFUL TO MINORS. ``(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. ``(2) Intentional violations.--In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. ``(3) Civil penalty.--In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. ``(b) Inapplicability of Carriers and Other Service Providers.--For purposes of subsection (a), a person shall not be considered to make any communication for commercial purposes to the extent that such person is-- ``(1) a telecommunications carrier engaged in the provision of a telecommunications service; ``(2) a person engaged in the business of providing an Internet access service; ``(3) a person engaged in the business of providing an Internet information location tool; or ``(4) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consistent with subsection (c) or section 230 shall not constitute such selection or alteration of the content of the communication. ``(c) Affirmative Defense.-- ``(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 ``(C) by any other reasonable measures that are feasible under available technology. ``(2) Protection for use of defenses.--No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this subsection or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section. ``(d) Privacy Protection Requirements.-- ``(1) Disclosure of information limited.--A person making a communication described in subsection (a)-- ``(A) shall not disclose any information collected for the purposes of restricting access to such communications to individuals 17 years of age or older without the prior written or electronic consent of-- ``(i) the individual concerned, if the individual is an adult; or ``(ii) the individual's parent or guardian, if the individual is under 17 years of age; and ``(B) shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the person making such communication and the recipient of such communication. ``(2) Exceptions.--A person making a communication described in subsection (a) may disclose such information if the disclosure is-- ``(A) necessary to make the communication or conduct a legitimate business activity related to making the communication; or ``(B) made pursuant to a court order authorizing such disclosure. ``(e) Definitions.--For purposes of this subsection, the following definitions shall apply: ``(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. ``(4) Internet access service.--The term `Internet access service' means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services. ``(5) Internet information location tool.--The term `Internet information location tool' means a service that refers or links users to an online location on the World Wide Web. Such term includes directories, indices, references, pointers, and hypertext links. ``(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 ``(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. ``(7) Minor.--The term `minor' means any person under 17 years of age.''.
    1. Challenge already filed by ACLU
1. Unconstitutional ? III. Post-ACLU v. Reno
    1. "CDA II" Possibilities
    1. likely mandate(s)
    2. the "private" or "user-empowering" solution to indecency
    1. Cybersitter
    2. PICS
      1. HTML standard
      2. not a filtering technology but a labeling standard
      3. doesn't target any particular category of speech it's viewpoint-"neutral"
    1. Self-rating: why the ACLU is against it
    1. will cause controversial speech to be censored
    2. it's burdensome, unwieldy, and costly
    3. conversation can't be rated
    4. it'll create a "Fortress America"
    5. will encourage government regulation
    6. Internet will become a homogenized medium
    1. Third Party Rating Systems
    1. could minimize burden of self-rating
    2. still serious concerns, though
    1. User-based Blocking Systems
    1. Mainstream Loudoun v. Board of Trustees of Loudoun County Library 4/7/98
  1. issue: whether a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech
  2. facts: library board voted to adopt a "policy on Internet Sexual Harassment"which requires site-blocking software be installed on all library computers so as to 1) block child porn. and obscene material and 2) block material deemed harmful to juveniles -plaintiffs allege the policy imposes an unconstitutional restriction on their right to access protected speech on the Internet
  3. precedent: analogous to Board of Education v. Pico (1982)
  4. arguments
  5. court's analysis
  6. class reaction