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
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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)