What the Supreme Court Could Learn About The Child Online Protection Act by Reading Playboy

William & Mary Bill of Rights Journal, Dec 2003

Due to the ease of Internet searching, Congress has passed the Child Online Protection Act to protect children from sexually explicit material. Although the Supreme Court has not directly decided the issue, it has hinted that the Act may survive a First Amendment challenge. In this Note, the author argues reasons why the Act should not survive a First Amendment challenge, and that measures such as parental empowerment via government-facilitated use of Internet filtering software are preferable

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What the Supreme Court Could Learn About The Child Online Protection Act by Reading Playboy

William & Mary Bill of Rights Journal W hat the Supreme Court Could Learn About The Child Online Protection Act by Reading Playboy Repository Citation Shaun Richardson, What the Supreme Court Could Learn About Th e Child Online Protection Act by Reading Playboy, 12 Wm. & Mary Bill Rts. J. 243 (2003), https://scholarship.law.wm.edu/wmborj/ vol12/iss1/7 - Article 7 WHAT THE SUPREME COURT COULD LEARN ABOUT THE CHILD ONLINE PROTECTION ACT BY READING PLAYBOY Due to the ease of Internet searching,Congress has passed the Child Online ProtectionAct to protect childrenfrom sexually explicit material. Although the Supreme Court has not directly decided the issue, it has hinted that the Act may survive a FirstAmendment challenge. In this Note, the authorarguesreasonswhy the Act should not survive a FirstAmendment challenge, and that measures such as parental empowerment via government-facilitated use of Internet filtering software arepreferable. INTRODUCTION The exponential growth ofthe Internet in size and popularity has revolutionized the way the world and Americans, in particular, do business, access information, and entertain themselves. Testifying to the pervasiveness of Internet use in American life is the fact that by 2001, 50.5% of American homes were connected to the Internet,' and 53.9% of the nation's population were Internet users.2 Like other media of communication, the Internet provides access to materials which are not suitable for all potential audience members. Specifically, sexually explicit material abounds on the World Wide Web,3 and much of that material is unsuitable for consumption by the minors who constitute a very substantial portion of Internet users.4 This concern has caught the attention of the U.S. Congress, BUREAU OF CENSUS, U.S. DEP'T OF COMMERCE, PUB. No. 1136, HOUSEHOLD WITH COMPUTERS & INTERNET ACCESS: 1998 & 2001 (2002) [hereinafter HOUSEHOLD WrrH COMPUTERS], at http://www.census.gov/prod/2003pubs /02statab/ infocom.pdf. 2 BUREAU OF CENSUS, U.S. DEP'T OF COMMERCE, PUB. No. 1134, COMPUTERS & INTERNET USE BY INDIVIDUALS: 1997 & 2001 (2002), at http:llwww.census.gov/prod/ 2003pubs/02statab/ infocom.pdf. 3 See Am. Library Ass'n Inc. v. United States, 201 F. Supp. 2d 401,419 (E.D. Pa. 2002) ("[T]he absolute number of Web sites offering free sexually explicit material is extremely large, approximately 100,000 sites."), rev'd, 123 S. Ct. 2297 (2003). Also, a large number of commercial websites offer pornographic content for a monetary fee. See ACLU v. Reno, 217 F.3d 162, 167 & n.5 (3d Cir. 2000) (discussing the fact that the Child Online Protection Act only applies to those offering pornographic content for commercial purposes), vacated by 535 U.S. 564 (2002). 4 According to census data, 27.9% of children between the ages of three and eight and 68.6% of children between the ages of nine and seventeen use the Internet. HOUSEHOLD WrrH COMPUTERS, supranote 1. which has acted quickly to pass legislation aimed at protecting children from exposure to harmful materials online. The road to unconstitutionality is often paved with good intentions, though, and Congress's first attempt to remedy the problem, the Communications Decency Act (CDA),6 immediately fell prey to the strictures of the First Amendment.7 As for Congress's second effort, the Child Online Protection Act (COPA),8 a Pennsylvania district court issued a preliminary injunction enjoining enforcement of the Act before it even took effect,9 suggesting that COPA's future was destined to be as bleak as that of its predecessor. In 2002, though, the Supreme Court had its first encounter with COPA when the government asked the Court to overturn the preliminary injunction barring enforcement of COPA." Though the Court did not go so far as to overturn the injunction, as will be discussed later, the Court's decision and accompanying opinions hinted that COPA would have a fighting chance were the Court in a position to directly evaluate the facial constitutionality of the Act under the First Amendment." This Note strives to highlight and discuss reasons why the Supreme Court should not give COPA a First Amendment green light. Reflecting upon the Court's words in United States v. Playboy EntertainmentGroup, Inc., 2 a case involving legislation aimed at protecting children from pornographic materials on cable television, this Note will suggest that parental empowerment via governmentfacilitated use of Internet filtering software is an equally efficacious, less restrictive means of accomplishing the goal of childproofing the Net, rendering a regime as invasive as that proposed by COPA invalid under the First Amendment. Additionally, this Note argues that the Court's strong tradition of recognizing a parent's substantive due process right to raise his or her child as he or she sees fit militates against COPA and in favor of less invasive legislation geared toward parental empowerment. First, this Note will provide an overview of th (...truncated)


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Shaun Richardson. What the Supreme Court Could Learn About The Child Online Protection Act by Reading Playboy, William & Mary Bill of Rights Journal, 2003, Volume 12, Issue 1,