The Regulation of Indecent Material Accessible to Children on the Internet
The R egulation of Indecent Material Accessible to Children on the Internet
Follow this and additional works at: http://scholarship.law.stjohns.edu/tcl Part of the Constitutional Law Commons, and the First Amendment Commons Recommended Citation
CHARLES PLATT, ANARCHY ONLINE, PART 2: NET SEx, 211 (1997) [hereinafter
PLATI] (reciting "A Prayer for a World without Porn" by the Senate Chaplain
immediately before debate of Senator Exon's Communications Decency Act, which
was read into the Congressional Record. 141 CONG. REC. S8329 (1995) (statement of
democratizing, global medium is being censored by the very
country that is supposed to be a beacon of freedom.2
In our view there is no such thing as a 'Constitution-proof law
criminalizing so-called indecency in cyberspace! s
[LIaws based on a desire to protect children are as dangerous as
they are compelling .... [RIegulations that 'drive certain
ideas or viewpoints from the marketplace' for children's benefit,
risk destroying the very 'political system and cultural life,' that
they will inherit when they come of age. We hope the Supreme
Court will agree.4
As Internet usage expands, it has revitalized the
pornography industry in a new cyber form. As parents and, as a
result, legislators, push to regulate the distribution of
pornographic material, especially to children, the Supreme Court
has pushed back. In recognition of the enormous reach and
public forum appeal of the Internet, it has been afforded the
highest level of First Amendment protection.
Protecting children from exposure to lurid pornography
versus protecting freedom of speech on the Internet has arguably
become one of the most passionately contested debates of the
decade. Lines in the sand are being drawn with the ACLU, net
users, computer geeks, student activists, libertarians,
anarchists, and powerful online service providers uniting against
the fundamentalists, legislators, pundits, religious organizations
and concerned parents.
Legislators fired the first shot when Congress passed the
Communications Decency Act ("CDA") in 1996' in a broad
attempt to prevent children from accessing "indecent" and
2 ACLU Press Release, Reno v. ACLU: Supreme Court Hears Arguments Today
"patently offensive" material over the Internet. In what
netizens,6 the ACLU, and other "online freedom fighters"
consider a "round one" victory, the Supreme Court struck down
two provisions of the CDA in a landmark 7-2 decision written by
Justice Stevens. The Court held that the CDA placed "an
unacceptably heavy burden on protected speech .... [that]
threatens to torch a large segment of the Internet community."'
In response, Ira Glasser, Executive Director of the ACLU, stated
that "[tihis is why independent courts are required to protect
liberty .... Everyone knew the CDA was unconstitutional, but
Congress passed the law and the President signed it. Today's
historic decision affirms what we knew all along: cyberspace
must be free."8
Realizing, however, that the ACLU may have won the battle
but not the war, David Sobel, legal counsel for the Electronic
Privacy Information Center (EPIC) and co-counsel in Reno v.
ACLU, warned that "[a]ttempts to censor the Net will not end
with the Supreme Court decision.... Proponents of Internet
content regulation have already indicated their desire to take a
'second bite of the apple' if the Communications Decency Act is
struck down."9 True to this warning and in the wake of the
controversial publication of the Kenneth Starr report on the
Internet, the House Subcommittee on Telecommunications,
Trade, and Consumer Protection approved new restrictions on
publishing content deemed "harmful to minors" on the Internet.
H.R. 3783, known as the Child Online Protection Act or CDA II,1"
represents Congress's second round attack, aimed at regulating
pornography on the Internet. Almost immediately following the
news, Electronic Frontier Foundation President Barry
Steinhardt launched a retaliatory scud, dubbing CDA II "a
Trojan horse," and challenging it as only ostensibly innocuous.11
This Note will analyze the constitutionality of the Child
Online Protection Act s under the First Amendment "strict
scrutiny" standard set forth by the Supreme Court in Reno v.
ACLU. Furthermore, it will discuss the challenges and issues
that the ACLU decision will present to concerned parents and
lawmakers as Internet usage inevitably expands and becomes
more ingrained in our everyday lives.
THE INTERNET AS A FORUM
Background on the Internet
By now, most people have heard of the Internet, although
misconceptions still abound. Even though the Internet has been
around since 1969,"3 it is only in the last decade or so that the
Internet has become a household word. As the District Court
explained in ACLU v. Reno:
The Internet is not a physical or tangible entity, but rather a
giant network which interconnects innumerable smaller groups
of linked computer networks. It is thus a network of networks.
... No single entity-academic, corporate, governmental, or
non-profit-administers the Internet. It exists and functions as
a result of the fact that hundreds of thousands of separate
operators of computers and computer networks independently
decided to use common data transfer protocols to exchange
communications and information with other computers .... "
In essence, the Internet is simply a global communications
network that utilizes the standard communication protocol
Transmission Control Protocol/Internet Protocol (TCP/IP) for the
purpose of allowing connected computers to communicate with
" ACLU Press Release, In the Wake of the Starr Report, CDA II Approved By
House Subcommittee (Sept. 17, 1998) (visited July 17, 1999)
html> (quoting Electronic Frontier Foundation (EFF) President Barry Steinhardt).
12 47 U.S.C.A. § 231 (Supp. 1999).
"s The Internet was established in 1969 by the U.S. Pentagon. Known as
ARPANET, it allowed academic and corporate researchers and government officials
to share data using e-mail and remote computers. See ACLU v. Reno, 929 F. Supp.
824, 831 (E.D. Pa. 1996), aff'd, 521 U.S. 844 (1997).
" Id. at 830, 832.
The most widely used and most popular method of Internet
communication is the World Wide Web. "The Web utilizes a
'hypertext' formatting language called hypertext markup
language (HTML), and programs that 'browse' the Web can
display HTML documents containing text, images, sound,
animation and moving video."" Millions of people gain access to
the Internet via the World Wide Web through major online
service providers such as America Online, The Microsoft
Network, and Prodigy. These service providers have facilitated
use of the Internet by developing
[a] variety of systems... that allow users of the Web to search
particular information among all of the public sites that are
part of the Web. Services such as Yahoo, Magellan, Altavista,
Webcrawler, and Lycos are all services known as 'search
engines' which allow users to search for Web sites that contain
certain categories of information, or to search for key words. 6
II. THE INTERNET, CHILDREN, AND PORNOGRAPHY
Cutting edge technologies such as the World Wide Web have
helped move the Internet from a back room research tool into the
foreground of everyday life. Declining access fees, faster
computers, and "friendly" graphical user interfaces have
attracted children as one of the fastest growing demographic
groups on the Internet and the Web. Many schools now
introduce children to the Internet as early as the third and
fourth grade. The Web affords school children the opportunity to
access a vast amount of relevant and desirable information
through the mere click of a mouse. The interactive nature of the
Internet makes it a far more exciting alternative to other forms
of media such as print, broadcast, and video.
The Internet, however, is also becoming the fastest growing
medium for pornography distribution. It is been deemed by
some to be the best hunting ground for pedophiles 7 and "the
most efficient pornography distribution engine ever conceived.""
"In the Senate, James Exon waved bestiality pictures at his
15 Id. at 836.
16 Id. at 837.
17 See Dan Glaister, Tap of the Devil, GUARDIAN (London), July 3, 1995, at T1.
18 Bill Frezza, Morality and Imagination:Technology Challenges Both, COMM.
WK., Jan. 13, 1997, at 31.
fellow legislators and warned that children all over America
could view this vileness with a click of a mouse button." 9 In an
attempt to quantify the problem of netporn, Martin Rimm, an
undergraduate at Carnegie-Mellon University, undertook a
study published in the Georgetown Law Journal and featured in
Time magazine. °
The study purported to prove that netporn was more
prevalent and perverse than anyone had thought possible.2'
Rimm's study was swiftly discredited, however, forcing decency
crusaders to disavow him.' Rimm cited shocking statistics such
as "83.5 percent of all images posted on the Usenet are
pornographic"' with little or no empirical data to support his
claim. Serious questions were raised regarding the accuracy of
Rimm's data and the methodology used in compiling his
statistics.2' Moreover, Rimm was only an undergraduate student
and his school, Carnegie-Mellon, called the study improperly
supervised. Rimm's invitation to attend the Senate's 1995
summer hearings on the Communications Decency Act was
rescinded.' The study, which for a short while looked like it
would answer the question, "how much pornography is there on
the Internet," ended up raising more questions than it answered.
Nonetheless, the publicity surrounding the study helped to raise
public awareness and concern over the issue.
Even though Rimm's study left the scope of Internet
pornography unresolved, many online users have acquired a
sense of its scope on their own. "The World Wide Web
Consortium launched the PICS ('Platform for Internet Content
Selection') program in order to develop technical standards that
would support parents' ability to filter and screen material that
their children see on the Web."26 Sales of stand alone software
programs allowing parents to limit Internet access by their
children such as Cyber patrol, CYBERsitter, Net Nanny, and
SurfWatch have grown. Much of this growth can be attributed to
parents coming across unsolicited e-mails (commonly referred to
'290 PSLeeAiTdr., sautp6.ra note 1, at 3.
21 See id. at 13.
22 See id. at 6.
' Id. at 19.
24 See id. at 22-23.
25 See id. at 6.
26 ACLU v. Reno, 929 F. Supp. 824, 838 (E.D. Pa. 1996).
as Spam),27 placing them three to four clicks away from a Web
page that would make even the most diehard ACLU parent
III. THE INTERNET COMPARED TO BROADCAST AND OTHER MEDIA
As with many new breakthrough technologies, especially
ones which have grown as quickly as the Internet, Congress and
the courts must react after the fact to begin to establish laws
surrounding these new leading edge technologies and the issues
they raise. This has proven to be particularly prevalent in the
area of mass media, where technology continues to push the
envelope, providing more innovative ways of making
entertainment and information available to the public.
In addition to evaluating indecency regulations imposed on
traditional printed matter, the Supreme Court has also on
several occasions reviewed indecency regulations imposed on
traditional mass media, such as broadcast radio, television,
telephone, and cable. Although "strict scrutiny" had been
applied to indecent expression prior to the mass media decisions,
several members of the Supreme Court have indicated that some
expression may be of "lesser value" than other expression, and
have implied that something less than strict scrutiny review
might apply.' This theory, however, was never adopted by a
majority of the Court. As a result, both telephone and cable
media have been afforded strict scrutiny review by the Court.'
27 Spam, in the context of the Internet, is defined as (1) the same information
posted an unacceptably high number of times to one or more newsgroups, or (
same e-mail sent out to an unacceptably high number of recipients. Spam is named
after the pink luncheon meat made by Hormel, commonly thought to have no
nutritive or aesthetic value. The prevailing theory on the origins of the term Spam
is that it comes from the song in Monty Python's famous "Spam-loving Vikings
sketch." The Vikings, who were sitting in a restaurant whose menu only included
dishes made with Spam, would sing "Spam Spam Spam Spam Spam Spam" over
and over, rising in volume until it was impossible for the other characters in the
sketch to converse. See The Net Abuse FAQ, (last modified Dec. 23, 1998)
See FCC v. Pacifica Found., 438 U.S. 726, 748-49 (1978) (The "lesser value"
theory was set forth in the context of broadcast, where the nature of the medium is
"uniquely pervasive" and "uniquely accessible to children"); see also discussion infra
9 See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994); Sable
Communications, Inc. v. FCC, 492 U.S. 115 (1989); see also discussion infra pp.
Comparisonof the VariousMedia
Dating as far back as 1476, when William Caxton first
introduced the printing press in England, the sweeping impact of
technological innovation in the area of mass media became
evident." The societal impact brought forth by the introduction
of new mass media technology has pushed the envelope of First
Amendment protection. The issue according to the courts,
however, is not necessarily what is said, but rather how it is
The Internet represents the pinnacle of mass communication
technology. Since it is not controlled by any one entity, including
the government, and it spans international boundaries,3 limiting
access is difficult and impractical. The courts and legislators
have struggled to frame the Internet in the context of previous
mass communication media. Similarities to the Internet can be
found across a broad spectrum of media. Newspaper and
magazine articles can be retrieved from the Internet and read in
a fashion similar to print media. People can communicate
interactively with each other via voice communication over the
Internet just as they communicate over the telephone. News
clips and videos can be watched and listened to on the Internet
just as they are viewed on more traditional broadcast media.
Analogizing the Internet to a single medium is difficult
because the Internet is less like any one medium, and more like
a combination of several media. This stems from the fact that
the Internet is not a physical medium, but instead a virtual,
intangible medium. The Internet, unlike television and radio, is
a protocol or standard for communicating information-any
information. Today, the most popular device used to
communicate across the Internet is the personal computer
("PC"). Due to the power and flexibility of hardware and
software, a PC is capable of emulating print, television, radio,
motion picture, and the mail. Therefore, instead of being labeled
as a revolutionary new medium, the Internet can be thought of
as a revolutionary new communication standard allowing
several forms of media to exist simultaneously on the same
device. As an example, people are currently accessing the
soSee David S. Bogen, The Origins of Freedom of Speech and Press,42 MD. L.
REV.3412S9e,e 4d4i2sc(u1s9s8io3n). of international aspect infra p. 144.
Internet through television, via Web TV, as well as through the
telephone. The cable companies and phone companies are
battling and positioning themselves to become the providers of
the "pipeline" through which all media will be accessed in the
Dubbed the information superhighway and cyberspace, the
Internet has become an extremely controversial and difficult
area to effectively legislate. Although the future of the Internet
and its ultimate role is unclear, it is clear that the bright line
drawn between the Internet and other media is blurring, and the
push to combine several forms of media together on the Internet
is becoming readily apparent. As mass media boundaries
dissolve, media-specific First Amendment standards will become
even less clear than they are now. Would a television or radio
broadcast become any less intrusive coming into the home via
the Internet instead of traditional broadcast channels? Is an
email much different from a printed brochure or catalog delivered
through the postal service? Is it any more difficult to locate a
"channel" on America Online than it is to locate a "channel" on
television? Indeed, as technology continues to grow at an ever
increasing pace, these questions become more difficult to answer.
The answers change faster than legislators are able to pass laws
to keep up with advances in technology. The one common thread
throughout the history of developing new mass media is that it
consistently attracts pornographic and indecent material, and in
turn makes that material more easily accessible to children.
IV. THE COMMUNICATIONS DECENCY ACT AND THE ACLU
A. The CommunicationsDecency Act
Title V of the Telecommunications Act of 1996, also known
as the Communications Decency Act ("CDA"), was introduced by
Senator James Exon (D-Neb.) on February 1, 1995, and signed
into law by President Clinton on February 8, 1996. This Act
represented the first attempt to regulate speech on the Internet.
In order to gather support for passage of the CDA, Senator Exon
assembled his "Blue Book," a collection of pornography
downloaded from various sites on the Internet, which he kept in
a blue folder and made available to the Senate for review.
Apparently, the contents of the folder made "Playboy and
Hustler look like Sunday-school stuff." The CDA faced strong
opposition from Senator Leahy (D-Vt.), who believed the
government should take no additional steps to regulate the
Internet. 33 Also opposed was Speaker of the House, Newt
Gingrich, who declared that the CDA clearly violated free speech
and that it was not an earnest way to approach a serious issue.3'
As one writer has noted, "[tihe CDA comprise[d] a minor portion
of the Telecommunications Act of 1996... which primarily
sought to reduce regulation and to encourage 'the rapid
deployment of new telecommunications technologies.' ' "Upon
signing the Act into law, President Clinton stated: '[tihis is truly
revolutionary legislation that will bring the future to our
doorsteps.' 3 Due to the CDA, however, the Act gained notoriety
as a censor of free speech on the Internet. v On virtually the
same day that the CDA became law, the ACLU and nineteen
other plaintiffs filed suit against the Attorney General,
challenging two provisions of the CDA.3'
32 Coe William Ramsey, Note, Burning the Global Village to Roast a Pig: The
is the Decency Act?, 8 ST. THOMAS L. REV. 593 (1996) (discussing the debate between
opponents and proponents of the CDA); David Kushner, Comment, The
Communications Decency Act and the Indecent Indecency Spectacle, 19 HASTINGS
COMM. & ENT. L.J. 87 (1996) (arguing that these regulations would introduce
sweeping new ways of censoring free speech).
See ACLU v. Reno, 929 F. Supp. 824, 827 (E.D. Pa. 1996). Section
223(a)(1)(B), often referred to as the "indecent transmission" provision, proscribed
the use of "a telecommunications device" to create or solicit, and initiate any
"obscene or indecent" transmission, "knowing that the recipient of the
communication is under 18 years of age, regardless of whether the maker of such
communication placed the call or initiated the communication." 47 U.S.C. §
223(a)(1)(B) (1994 & Supp. 1997). The legislative history indicates that Congress
intended the term "telecommunications device" to reach individual Internet users.
See ACLU, 929 F. Supp. at 828 n.5 (finding that the plain meaning of the phrase
and the intent of the sponsors was for the Act to reach individual users). Section
223(d)(1), often referred to as the "patently offensive display" provision, proscribed
ACLU v. Reno (ACLU I)
The ACLU filed suit against the Department of Justice in
the United States District Court for the Eastern District of
Pennsylvania.39 In addition to the ACLU, the plaintiffs consisted
of various companies and organizations associated with the
computer and communications industry, as well as parties who
published material on the Internet or belonged to various citizen
groups.0 The ACLU challenged two provisions of the CDA,
sections 223(a)(1)(B) and 223(d), on constitutional grounds."' No
objection was made to the statutory provision covering obscenity
or child pornography because these were already proscribed
prior to the enactment of the CDA.'2
The case was heard by a three-judge panel of the District
Court, led by Chief Circuit Judge Dolores K. Sloviter of the
United States Court of Appeals for the Third Circuit. Both
sections of the CDA were found to be unconstitutional. 3 The
District Court applied the strict scrutiny standard to the
Internet provision and concluded that despite a compelling
governmental interest to protect children from indecent speech,
the provision was not narrowly tailored to attain that interest,
and was therefore unconstitutionally overbroad." Judge Sloviter
compared the provision to a "criminal statute that hover[ed] over
the knowing use of any interactive computer service to send or display to any person
under 18 years of age any communication that "depicts or describes, in terms
patently offensive as measured by contemporary community standards, sexual or
excretory activities or organs, regardless of whether the user of such service placed
the call or initiated the communication." 47 U.S.C. § 223(d)(1). Violation of these
provisions carried criminal fines and imprisonment for up to two years. See id. §
223(a). Section 223, however, did set forth defenses against prosecution under the
Act. A person could escape liability if he or she did not control the content of the
communication system or network that was in violation of the CDA. See id §
223(e)(3). Additionally, an employer was not liable for the conduct of an employee
unless it was within the scope of his or her employment, and the employer either
authorized or recklessly disregarded the conduct. See id. § 223(e)(4). Moreover,
liability could also be avoided by applying "good faith, reasonable, effective, and
appropriate actions ... to restrict or prevent access by minors" or by "restrict[ing]
access... [to minors] by requiring use of a verified credit card, debit account, adult
access code, or adult personal identification number." See id. § 223(e)(
"oSee ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), affd, 521 U.S. 844
40 See id. at 827 n.2.
4' See id. at 828.
4' See id. at 829.
4 See id. at 849.
See id. at 851, 857.
each content provider, like the proverbial sword of Damocles." 45
C. Reno v. ACLU (ACLU II)
The government appealed the District Court's judgment
directly to the Supreme Court under a special review provision,
section 561 of the CDA.46 In a 7-2 majority opinion written by
Justice Stevens, the United States Supreme Court affirmed the
decision of the District Court, 7 upholding the application of the
strict scrutiny standard to Internet speech.8 In rejecting the
government's analogies to previous Supreme Court decisions
involving other forms of mass media which received less than
strict scrutiny review, the Court distinguished the Internet from
traditional broadcast media. 9 The Court cited the history of
extensive government broadcast regulation, ° the scarcity of
available frequencies,5 and broadcast's invasive nature.52
Although the Court agreed that the government had a
compelling interest in protecting children from indecent
material, the Court found that sections 223(a)(1)(B) and 223(d)
were not narrowly tailored to achieve that interest, and the
sections would therefore suppress a far greater spectrum of
speech than was constitutionally permissible.53
V. RECENT LEGISLATION-INDECENT SPEECH ON THE INTERNET
The Child Online ProtectionAct-CDA-II
On April 30, 1998 Representative Mike Oxley (R-Ohio) and
Senator Dan Coats (R-Ind.) co-sponsored the Child Online
Protection Act ("COPA"), a companion bill to the Senate's
Internet Indecency Act.55 The bill was dubbed "CDA II" by
opponents."6 The effort to pass COPA represented Congress'
second attempt to protect children from exposure to indecent
material on the Internet by narrowing the CDA, previously held
unconstitutional. The House Commerce Subcommittee on
Technology, Trade, and Consumer Protection approved COPA
less than a week after Independent Counsel Kenneth Starr's
sexually explicit report on President Clinton was posted on the
Internet.57 President Clinton signed the bill into law on October
21, 1998's as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999. 59 The COPA hitchhiked
a ride with other Omnibus Appropriations measures, including a
moratorium on Internet taxes ("The Internet Tax Freedom
Act")' and enhanced copyright protection for online works. 1
Broad public support for legislative action to protect children
from Internet pornography, coupled with political pressure "for
the White House to regain its moral compass" vis-a-vis the
Monica Lewinsky Presidential debacle, have been cited as
possible reasons the Act was allowed to remain entrenched as
part of the $520 billion federal spending package. 2
Less than twenty-four hours after President Clinton signed
the bill, the ACLU along with sixteen other plaintiffs filed
papers in federal District Court in Philadelphia seeking an
injunction against the new law--deja vu.'
Title I of the Act, entitled, "Protection From Material That is
Harmful to Minors," states:
Whoever knowingly... 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
Internet Service Providers ("ISPs"), Online Service Providers
("OPSs"), providers of browser software, and other related
service providers are exempted from liability under the Act.6
The Act also sets forth affirmative defenses allowing a defendant
to avoid prosecution by restricting access to harmful material by
minors." These defenses include requiring the use of a credit
card, debit account, adult access code, adult personal
identification number ("PIN"), accepting a digital certificate
verifying age, or any other reasonable measure that is "feasible
under available technology."67 The following definitions are also
set forth in the Act:
(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... [making it] publicly accessible
over the Internet.
) Commercial Purposes; Engaged in the Business. [These
terms mean to knowingly] make a communication.., by means
of the World Wide Web, that includes any material that is
harmful to minors.., as a regular course of such person's trade
or business, with the objective of earning a profit.'
) Material that is harmful to minors. The term "material that
is harmful to minors means any... matter... that is obscene
(A) the average person, applying contemporary community
standards, would find, taking the material as a whole and with
47 U.S.C.A. § 231(a)(1) (Supp. 1999).
85 See id. § 231(b).
66 See id. § 231(c )(1).
07 Id. § 231(c)(1)(A-C).
Id. § 231 (e)(1)-2)(B).
respect to minors, is designed to appeal to... the prurient
(B) depicts... in a manner patently offensive with respect to
minors, an actual or simulated sexual act or sexual contact...
and taken as a whole, lacks serious literary, artistic, political or
scientific value for minors."69
) Minor. The term "minor" means any person under 17 years
of age. 0
Section 103 obligates a service provider to notify online
service customers that parental control protections are
commercially available to assist them in limiting access to
material harmful to minors.7'
Additionally, section 104 establishes the temporary
Commission on Online Child Protection, which was formed for
the purpose of conducting a study regarding methods available
to help reduce access by minors to harmful Internet material.72
Finally, Title II, entitled Children's Online Privacy
Protection, protects children from the release of personal
information collected by a Website or online service.73
As expected, the Act solicited strong reactions from free
speech activists and those favoring restrictions to safeguard
children, as did its predecessor, the CDA. Proponents of the
COPA point out its adherence to the Supreme Court's treatment
of the CDA, balanced by the need to protect children from
indecency on the Internet. According to Senator Coats, the Act
"[will] correct mistakes that led to the Supreme Court ruling
that the CDA was unconstitutional." 74 Representative Tauzin
(D-La.) asserted that the Act "makes an honest attempt, without
interfer[ing] with the [F]irst [A]mendment, to... [prevent] our
6791 IIdd.. §§ 223311((ee))((76)).(A-B).
71 See Pub. L. No. 105-277, 112 Stat. 2681-736, 739.
7'See Children's Online Privacy Protection, 144 CONG. REc. H9902-01 Title II §
202 (daily ed. Oct. 7, 1998).
7 Lawmakers to Impose Barrierson Web to Keep Porn,Stalkers from Children,
EDUC. TECH. NEWS, Sept. 16, 1998, at *1. Senator Coats further noted that he
"think[s] it would be a sad day indeed if Congress acted to provide a tax shelter for
commercial porn sites on the Web without first requiring them to take responsible
measures to protect children from exposure to the[ir] smut." Id.
sons or daughters... [from] easily access[ing] "" pornography
online without our consent. "It is effective because it focuses on
the commercial seller of pornography, [and] ... attempts to
address all the issues raised by the Supreme Court."6
Representative Oxley (R-Ohio) supported the Act by stating the
"COPA... does not restrict an adult's ability to access
pornographic Websites and does not apply to content with
redeeming value.... The bill merely proposes that Web porn be
treated in the same manner as the print media."77
Representative Greenwood (R-Pa.) also voiced his support by
stating: "[tihe First Amendment certainly protects the right of
people to have any kind of literature in their adult bookstores,
but it certainly does not mean that proprietors can... display
their merchandise [in] the windows of their store visible to...
children .... That is what this legislation does on the Web.78
Representative Pitts (R-Pa.) also stood behind the Act. He
Opponents of this bill will claim that we are attempting to
federally [clensor the [Ilnternet. This is simply not true. In
fact, the legislation specifically states that it must not be
construed to authorize the FCC to regulate in any manner the
content of any information provided on the worldwide web. The
bill simply requires commercial providers to place materials
that are harmful to minors on the other side of adult
Representative Stearns (R-Fla.) pointed out that "[tihe bill
uses the constitutionally defensible 'harmful to minors' standard
rather than the constitutionally questionable 'decency'
standard.""0 Representative Bliley (R-Va.) announced:
H.R. 3783 does not "burn the house to roast the pig." Adults
may still view any materials on the Internet they wish, with
minimal inconvenience, and engage in adult conversations in
chat rooms, e-mails, and bulletin board services. Thus, H.R.
3783 strikes the appropriate balance between the First
Amendment rights of adults and the government's compelling
76 144 CONG. REC. H9902-01, H9906 (daily ed. Oct. 7, 1998) (statement of Rep.
77 Id. at H9907 (statement of Rep. Oxley).
8 Id. at H9908 (statement of Rep. Greenwood).
79 Id. at H9909 (statement of Rep. Pitts).
'0 Id. at H9910 (statement of Rep. Stearns).
interest to protect children."
Opponents voiced strong concerns, however, and view the
COPA as merely the CDA in sheep's clothing.12 The ACLU
coalition launched the first attack against the COPA, this time
armed with a powerful letter that the Department of Justice sent
to Representative Bliley before the bill was passed." The letter
voiced serious concerns about the COPA.
The Department's enforcement of a new criminal prohibition
such as that proposed in the COPA could require an
undesirable diversion of critical investigative and prosecutorial
resources that the Department currently invests in combating
traffickers in hard-core child pornography, in thwarting child
predators, and in prosecuting large-scale and multdistrict
commercial distributors of obscene materials.
[Additionally,] such a provision would likely be challenged on
constitutional grounds, since it would be a content-based
restriction applicable to "the vast democratic fora of the
Internet," a "new marketplace of ideas" that has enjoyed a
"dramatic expansion" in the absence of significant
Finally, the COPA as drafted contains numerous ambiguities
concerning the scope of its coverage. Such ambiguities ...
might "render [the legislation] problematic for purposes of the
First Amendment," by "undermin[ing] the likelihood that the
[bill] has been carefully tailored to the congressional goal of
protecting minors from potentially harmful materials.""
ACLU President Nadine Strossen stated that "[tihis Act is
absolutely misdescribed as being for children. It is no more for
children than it is for free speech."' The ACLU also suggested
8' Id. (statement of Rep. Bliley).
that the COPA was passed merely on the coattails of Kenneth
Starr's report on President Clinton. They noted that news sites
carrying the report may have been subject to criminal
prosecution under the COPA, and called the censorship "a free
political ride."" Barry Steinhardt, president of the Electronic
Frontier Foundation ("EFF"), hopped on the Starr Report
bandwagon by stating that "[iut is the height of irony that the
same Congress that plastered the salacious Starr Report all over
the Internet now passes a plainly unconstitutional law to
suppress a vaguely defined category of 'harmful' material."87
Although many people question the degree to which Starr's $50
million plus report benefits mankind, the ACLU is correct in
stating that the right to publish the report is undeniably
protected by the First Amendment. Nonetheless, the Starr
Report would probably survive liability under the "harmful to
minors" section of the COPA due to its political value.' Ann
Beeson, attorney for the ACLU, stated: "U]ust like the CDA, this
bill will once again criminalize socially valuable adult speech
and reduce the Internet to what is considered suitable for a
sixyear-old." 9 Other opponents include Senator Leahy (D-Vt.), who
vehemently opposed the CDA and stated in the Congressional
CDA-II makes a valiant effort to address many of the Supreme
Court's technical objections to the CDA. Nevertheless, while
narrower than its CDA-I predecessor, this legislation continues
to suffer from substantial constitutional and practical defects.
The core holding of the CDA-I case was that "the vast
democratic fora of the Internet" deserves the highest level of...
First Amendment scrutiny. Courts will assess the
constitutionality of laws that regulate speech over the Internet
by the same demanding standards that have traditionally
applied to laws affecting the press. The CDA-II provisions
1998, aItnCt1h0e.Wake of the StarrReport, CDA H Approved by House Subcommittee,
supr8a7nMoteedd83li.ng With the Internet: The New "CDA2" Censorship Act, ONLINE
NEWSL., Nov. 1, 1998, at *1, available in 1998 WL 2088398.
See Starr Report, <http'//www.fednet.net/starr/lcover.htm> (Sept. 9, 1998)
(visited on July 30, 1999); see also 47 U.S.C.A. § 231(e)(
)(C) (Supp. 1999) (defining
"[miaterial that is harmful to minors" as, inter alia, something that "taken as a
whole, lacks serious literary, artistic, political, or scientific value for minors").
'9 Meddling With the Internet: The New "CDA2"CensorshipAct, supra note 87,
included in the Omnibus Appropriations bill do not meet those
B. Analysis of COPA UnderACLU II
To survive the "strict scrutiny" standard of review imposed
by the Supreme Court, regulations restricting speech on the
Internet must be necessary to promote a compelling
governmental interest. The regulations must be both narrowly
tailored to achieve that interest and the least restrictive
The Court in ACLU II agreed that the government has a
compelling interest to protect children from indecent material on
the Internet.92 For COPA to survive strict scrutiny, it must be
narrowly tailored to achieve that compelling interest, and it
must be the least restrictive technological means available to
protect children from indecent material on the Internet.
Drafters of the COPA addressed these and other issues in an
attempt to create legislation that could restrict indecent Internet
material and pass constitutional muster.
1. Regulation Limited to the World Wide Web
The COPA specifically and exclusively targeted the World
Wide Web as the area of the Internet to regulate. The CDA, on
the other hand, targeted a much broader spectrum of
communication on the Internet. The COPA does not attempt to
regulate chat rooms, e-mail, and other less graphic forms of
communication on the Internet. By targeting the Web as
opposed to the entire Internet, Congress has greatly narrowed
the scope of online expression it seeks to regulate. This resolved
many of the problems caused by the CDA's attempt to regulate a
forum as vast and far reaching as the Internet. In ACLU I, the
court discussed the ineffectiveness of adult verification
technology in determining the age or identity of users of e-mail,
newsgroups, and chat rooms.93 The COPA effectively addresses
the court's concern by limiting its jurisdiction to the World Wide
go144 CONG. REC. S12794 (daily ed. Oct. 21, 1998) (statement ofSen. Leahy).
9' See ACLU v. Reno, 929 F. Supp. 824, 861 (E.D. Pa. 1996), aftd, 521 U.S. 844
See id. at 853.
' See id. at 845.
Web, where adult verification technology is far more effective."
Moreover, the World Wide Web is by far the most popular user
interface on the Internet, and most of the indecent material
easily accessible by children on the Internet can be effectively
controlled by managing the World Wide Web. 5
By restricting foreign as well as interstate Web commerce,'
however, the COPA may force the Court to address the
international aspect of the World Wide Web and
authority to exert its control in this arena.
Court left this issue unresolved, acknowledging
Congress' only that
In ACLU H, the
"[blecause so much sexually explicit [material] originates
overseas," difficult issues are raised regarding the scope and
extraterritorial application of the CDA.97 In addition to the
Court, opponents have challenged attempts at regulating the
Internet because of its "borderless" characteristics." Many have
suggested that international treaties and consortiums would be
better equipped to control the Internet."
The court notes:
An e-mail address provides no authoritative information about the
addressee, who may use an e-mail "alias" or an anonymous remailer.
There is also no universal or reliable listing of e-mail addresses... [and]
no reliable way.., for a sender to know if the e-mail recipient is an adult
or a minor .... Because of similar technological difficulties, individuals
posting a message to a newsgroup or engaging in chat room discussions
cannot ensure that all readers are adults .... [However], [u]nlike other
forms of communication on the Internet, there is technology by which an
operator of a World Wide Web server may interrogate a user of a Web
site .... [A) fill-in-the-blank [electronic] "form" to request information
from a visitor to a Web site [can be used], and this information can be
transmitted back to the Web server and be processed by a computer
95See Shawn G. Pearson, Comment, Hype or Hypertext? A Plan for the Law
2. Definition of a Minor
The COPA specifically addressed the
Court's concern in
ACLU II for the definition of a minor. In comparing the CDA to
the statute challenged in Ginsberg"° the Court stated that "the
New York statute defined a minor as a person under the age of
17, whereas the CDA, in applying to all those under 18 years,
includes an additional year of those nearest majority.""'
231(e) of the COPA follows the New
York statute in Ginsberg
and defines a minor as any person under seventeen years of age.
3. Commercial Transactions
The Court in ACLU II, also referring to Ginsberg, stated
that "the New York statute applied only to commercial
transactions, whereas the CDA contains no such limitation. " "
Section 231(a)(1) of the COPA attempts to address this issue by
only prohibiting communication over the World
Wide Web for
Act defines commercial
World Wide Web
communications made in the "regular course of ... trade or
business, with the objective of earning a profit."' Although this
was clearly an attempt at addressing the Court's concern, the
ACLU points out in its complaint:
The Act does not restrict the sale of speech on the Web. In fact,
the Act provides an explicit defense for providers who charge
for their speech by credit or debit card. Rather, the Act
explicitly and purposefully bans a wide range of protected
register with authorities. See Wendy Grossman, Connected: A Grip on the Net
Analysis Britain's New Internet Control Scheme Is Based on a Self-Regulatory
Approach, DAILY TELEGRAPH (London), Oct. 1, 1996, at 12 (comparing Britain's
regulations with those found in other countries). Germany has set up a regulatory
agency and passed laws to help state officials to better monitor the Internet. See id.
Britain, which has strong laws governing child pornography, has increased the
punishment for possession of indecent photographs of children, including
computergenerated images. See Internet Safety-Net to Tackle Child Porn, Sept. 25, 1996,
available in 1996 WL 11275170. At the other extreme, possession of child
pornography is legal in Spain and Sweden. See Moseley, supra note 95, at 6
("Sweden's liberal laws on freedom of expression, similar to the U.S. 1st
Amendment guarantees, have made it impossible so far to outlaw possession of
1 Ginsberg v. New York, 390 U.S. 629 (1968). The Ginsberg Court upheld a
New York statute proscribing the sale of"girlie" magazines to minors. Id. at 641-43.
'0' ACLU, 521 U.S. at 865-66.
'0' Id. at 865.
103 Child Online Protection Act, 47 U.S.C.A. § 231(e)(
)(B) (Supp. 1999).
expression that is provided for free on the Web by organizations
and entities who happen to be communicating on the Web "for
This raises the issue of whether "entrepreneurs, small
businesses and other companies who maintain a Web site as a
way to enhance their business may face criminal liability if they
post material... which some community... may perceive to be
'harmful to minors.' "'0 The New York statute attacked in
Ginsberg specified that "[iut shall be unlawful for any person
knowingly to sell or loan for monetary consideration.""° The
COPA specifically targets World Wide Web communications
made with the "objective of earning a profit as a result of such
activities."'°O The Court could easily restrict this language to
apply only to people who are in the business of selling material
that is harmful to minors on the World Wide Web. Indeed, the
legislative history supports that interpretation." 8
Limiting restrictions on speech to "commercial transactions,"
however, does not guarantee a favorable response from the
Court. It did not save a statute aimed at prohibiting
"indecent... interstate commercial telephone messages""° from
being struck down by the Court in Sable. 0 Moreover, the Court
has analogized the "non invasive nature" of the Internet more
closely with the telephone than other media.
4. Criminal Penalties
Although Congress reduced criminal liability under the
COPA to a maximum of six months imprisonment (from a
maximum of two years under the CDA), the Court may still
compare the criminalization of indecent speech on the Internet
to the hanging sword of Damocles. In ACLU H, the Court
'04 Civil Action No. 98-CV-5591 Preliminary Statement § 5, Electronic Privacy
Information Center (Oct. 22, 1998) (visited July 24, 1999)
'0' 144 CONG. REC. S12794 (daily ed. Oct. 21, 1998) (statement of Sen. Leahy)
(expressing concern over the commercial purposes provision of the COPA).
Ginsberg v. New York, 390 U.S. 629, 647 (1968).
107 47 U.S.C.A. § 231 (e)(
)(B) (Supp. 1999) (emphasis added).
108 See id.
10* Reno v. ACLU, 521 U.S. 844, 869 (1997) (emphasis added).
110 Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989) (invalidating a ban
distinguished the FCC order in Pacifica...from the CDA because
"unlike the CDA,... [the FCC order in Pacifica] was not
punitive; we expressly refused to decide whether the indecent
broadcast 'would justify a criminal prosecution.' "" The criminal
liability provision of the COPA, evaluated under the high level of
protection afforded the Internet, will likely make this Act a
tough pill for the Court to swallow.
5. Barring Parents From Purchasing Indecent Material for
In ACLU II, the Court discussed the fact that the New York
statute in Ginsberg did "not bar parents from purchasing the
magazines for their children. Under the CDA, by contrast,
neither the parents' consent-nor [I their participation...
would avoid the application of the statute.""3 Although the
COPA does not address this concern directly, it does leave the
door open for parents who wish to obtain indecent material on
the Web for their children. Requiring the use of a credit card or
adult access code exempts the purveyor of indecent material on
the Web from liability. Therefore, parents can either access the
Websites for their children or give their codes to their children,
thereby allowing direct access.
.,.FCC v. Pacifica Found., 438 U.S. 726 (1978). The facts of Pacificainvolved
broadcast radio and the allegedly indecent weekday afternoon radio broadcast called
"Filthy Words," a selection from one of George Carlin's comedy albums. Id. at
72930. The Federal Communications Commission ("FCC") issued a declaratory order
holding that Pacifica, the owner of the New York radio station that aired the Carlin
monologue, "could have been the subject of administrative sanctions" pursuant to
Title 18 U.S.C. section 1464, which proscribes the use of "any obscene, indecent, or
profane language by means of radio communications." Id. at 730-31 (internal
citation & quotation omitted). Justice Stevens' opinion stated that the indecent
language in Carlin's monologue was "unquestionably 'speech' within the meaning of
the First Amendment." Id. at 744. Nonetheless, he also wrote that "each medium of
expression presents special First Amendment problems, [and] ... it is broadcasting
that has received the most limited First Amendment problems." Id. at 748. A
plurality upheld the FCC's "power to regulate a radio broadcast that is indecent but
not obscene." Id. at 729. "[Wlhen the Commission finds that a pig has entered the
parlor, the exercise of its regulatory power does not depend on proof that the pig is
obscene." Id. at 750-51. However, four members of the Court rejected Justice
Stevens's view that this kind of speech was of lesser value, thus making the subject
matter more conducive to regulation. See id. at 762-77 (Brennan, J., dissenting); see
also id. at 777-80 (Stewart, J., dissenting).
.12ACLU, 521 U.S. at 867.
11. Id. at 865 (footnote omitted).
6. Definition of Indecent and Patently Offensive
The Court in ACLU H compared the terms "indecent" and
"patently offensive" in the CDA to the term "harmful to minors"
in the New York statute in Ginsberg. The New York statute
defined "material that is harmful to minors" by specifying that it
must be "utterly without redeeming social importance for
minors."114 The CDA failed to even define "indecent."
Additionally, the Court held that the CDA failed to require that
"patently offensive" material must also "lack serious literary,
artistic, political, or scientific value." 5 The COPA directly
addressed this issue by specifically defining "material that is
harmful to minors" in a manner very similar to the obscenity
standard set forth in Miller."' Presumably, this was done to
close the gap between material that is harmful to minors and
material that is obscene, the latter of which does not receive
First Amendment protection. One important difference between
the COPA definition and the Miller definition, however, is that
the "patently offensive" provision of the Miller test follows a
community based standard-"whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law.""' Conversely, in section
)(B), the COPA effectively sets a national standard for
determining whether material is "patently offensive with respect
to minors.""1 Instead of allowing each state to set its own
definition, the COPA defines the term as "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
postpubescent female breast." 9 The Supreme Court has not yet
approved of a single, national obscenity or "patently offensive"
standard. Even though the standard set forth in the COPA
appears on its face to be drawn narrowly as applied to minors,
the Court in Miller stated that "[it is neither realistic nor
constitutionally sound to read the First Amendment as requiring
that the people of Maine or Mississippi accept public depiction of
116Miller v. California, 413 U.S. 15, 24 (1973).
"' Id. (emphasis added) (describing proper guidelines for considering state laws
that regulate obscene material).
"8 Child Online Protection Act, 47 U.S.C.A. § 231(e)(
)(B) (Supp. 1999).
conduct found tolerable in Las Vegas, or New York City."12 The
Miller standard has been upheld since 1972, and attempting to
alter it for the Internet may not survive strict scrutiny review by
7. Least Restrictive Alternative Means
One of the most difficult hurdles for Congress to clear will be
convincing the Court that criminal penalties are the least
restrictive means to control access of indecent material on the
Internet by children. The Court has already acknowledged an
alternative which requires the "tagg[ing]" of indecent material in
a way that "facilitates parental control of material coming into
their homes." 2' Additionally, the rapid development of
userbased blocking programs is affording parents more and more
control over what their children can view online. The COPA
itself even recognizes this alternative in section 103, which
requires that customers be notified of commercially available
parental control protections. Additionally, Congress
acknowledged that it had not adequately researched other
alternatives restricting indecent material on the Internet when
it established the Commission on Online Child Protection, set up
specifically to identify other methods of reducing access by
minors to harmful Internet material. The Court addressed this
issue in ACLU H: "Particularly in the light of the absence of any
detailed findings by the Congress, or even hearings addressing
the special problems of the CDA, we are persuaded that the CDA
is not narrowly tailored . . ,122
On the other hand, one of the least restrictive alternatives
mentioned by the ACLU H Court was to regulate only "portions
of the Internet-such as commercial web sites-differently than
others, such as chat rooms.""= This was precisely the route
taken by Congress when it limited the scope of the COPA to the
World Wide Web and to "commercial transactions." Additionally,
if the COPA were to come before the Court, the "adult fire wall"
or "adult zone" set up vis-a-vis credit card or password access
might appeal to Justice O'Connor. In her dissent in ACLU H,
she stated that "precedent indicates that the creation of such
120 Miller,413 U.S. at 32. (footnote omitted)
121 Reno v. ACLU, 521 U.S. 844, 879 (1997).
12 Id. (emphasis added).
zones can be constitutionally sound."' 24 She felt the CDA was
unconstitutional because it "stray[ed] from the blueprint [I] prior
cases have developed for constructing a 'zoning law' that passes
constitutional muster."" She went on to say that "a zoning law
is valid if (i) it does not unduly restrict adult access to the
material; and (ii) minors have no First Amendment right to read
or view the banned material. 26 Justice O'Connor would have
upheld the CDA to the extent that it prohibited indecent speech
between an adult and one or more minors.
By instituting an adult screening requirement for Web
based material only, the COPA comes very close to Justice
O'Connor's model of allowable regulation of indecent material on
the Internet. Since the COPA does not attempt to regulate
email, newsgroups, or chat rooms, adults are free to communicate
with other adults via these channels in an indecent manner,
whether or not a minor is present. Communications between
adults over the World Wide Web are protected, even if a minor is
present, so long as the Web site has "adult verification
technology." The COPA cites "adult verification technology,"
however, as an affirmative defense rather than a provisionary
requirement, which may tend to lessen the weight of this
provision in the eyes of the Court.
Although Congress addressed many of the issues raised by
the Court in ACLU H and has tailored the COPA much more
narrowly than its predecessor, the CDA, the strict scrutiny
standard afforded the Internet will make any content based
regulation of speech in this medium very difficult. Two factors
that will make it very difficult for the COPA to survive strict
scrutiny review by the Court are: (i) the COPA still imposes
criminal liability upon violators, and (ii) Internet screening
software is advancing rapidly, thereby creating a viable and less
restrictive alternative. These factors may render the COPA
unconstitutional, similar to the CDA. Moreover, the ACLU has
again lined up a coalition in opposition to the new Act, with
compelling ammunition from the Justice Department and a
recent 7-2 Supreme Court decision in its favor.
124 Id. at 886. (O'Connor, J., concurring in the judgment, dissenting in part).
126 Id. at 888.
As round two of the "freedom of speech on the Internet"
battle heats up, we again see the ACLU coalition battling for our
First Amendment rights against a Congress trying to avoid being
dubbed pornography sympathizers by its constituents. Whether
the COPA was signed into law for political reasons or out of a
true concern over the welfare of our children, the result will
likely be another drawn out First Amendment dispute.
The real tragedy, however, is that while the ACLU battles to
protect our First Amendment rights and the legislators battle to
get re-elected, there are apparently children out there in
cyberspace suffering irreparable damage and harm from all the
pornography available online, and online solicitation by
pedophiles. Although the magnitude of the problem has not yet
been quantified, it nonetheless exists. It is difficult to predict
whether the COPA will survive strict scrutiny and pass
constitutional muster. If screening software and "cyber zoning"
seem to be the least restrictive means to protect children from
online pornography, then Congress would be well advised to
heavily fund this area of development and invest in educating
parents and children about the dangers of cyberspace.
Government funding in this area would probably provoke far less
opposition, and a technological rather than a legislative solution
to this problem probably represents the "handwriting on the
wall" anyway. Furthermore, existing legislation already
qualifies most of the really offensive material on the Internet as
"obscenity" or "child pornography," thereby making it illegal.
The proliferation of this material is probably more a function of
the difficulty involved in "policing" the Internet than a lack of
legislation. Although I would personally not be averse to a
narrowly tailored regulation restricting the flow of the
pornography in cyberspace, a solid technological "firewall" or
"adult zone" made available to Internet savvy parents seems to
be a more productive and reasonable alternative at this juncture.
6 A "netizen" was a term coined in the early 1990s to describe Internet users. This term was extrapolated from the English term Net Citizen and subsequently shortened to netizen. Netizens are net citizens who utilize and populate the Internet, making it a human resource.
7 ACLU , 521 U.S. at 882.
8 ACLU Press Release , Supreme Court Rules: Cyberspace Will be Free! ACLU Hails Victory in Internet Censorship Challenge (June 26, 1997 ) ( visited July 17 , 1999 ) <http://www.aclu.org/news/n062697a.html> (quoting ACLU Executive Director Ira Glasser at a live "cyber-cast" news conference at the American Civil Liberties Union's national offices in New York).
" ACLU & Electronic Privacy Information Center Joint Press Release, ACLU, EPICCall on Congressand Clinton to "Take the FirstAmendent Pledge" (June 16, 1997 ) ( visited July 17 , 1999 ) <httpJ/www.aclu.org/news/n061697c.html> (quoting David Sobel, legal counsel for EPIC and co-counsel in Reno v .ACLU).
'0 Child Online Protection Act , 47 U.S.C.A. § 231 ( Supp . 1999 ). CommunicationsDecency Act of 1996 Is Not "NarrowlyTailored"in Reno v . ACLU , 32 WAKE FOREST L. REV . 1283 , 1291 ( 1997 ).
"See Robert Cannon, The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway, 49 FED . COMM. L.J. 51 , 65 ( 1996 ).
See id . at 67.
35 Al Harrison, Internet: Supreme Court Holds That Communications Decency Act Is Unconstitutional , 35 HOUs. LAW. 44 , 44 ( 1998 ).
wJohn J. McGuire , Comment, The Sword of DamoclesIs Not Narrow Tailoring: The FirstAmendment's Victory in Reno v . ACLU, 48 CASE W. RES. L. REV . 413 , 415 ( 1998 ) (quoting Mimi Whitefield, A New Era In Telecommunications , MIAMI HERALD, Feb. 9 , 1996 , at C1).
37 See generally Dominic Andreano, Note & Comment, Cyberspace: How Decent
5' See H.R. 3783 , 105th Cong. § 1 ( 1998 ) (enacted).
6' See S. 1482 , 105th Cong. ( 1997 ).
5' See Kimberly S. Keller, Comment, From Little Acorns Great Oaks Grow: The Constitutionalityof ProtectingMinors from Harmful Internet Material in Public Libraries,30 ST . MARY'S L.J . 549 , 554 - 55 ( 1999 ) ; see also ACLU Press Release, Spawn of CDA- New Internet Censorship Bills Slither Through Senate (Mar . 12, 1998 ) ( visited July 11 , 1999 ) <http'//www.aclu.org/news/n 031298b. html>.
57 See ACLU Press Release, In the Wake of the StarrReport, CDA II Approved by House Subcommittee (Sept . 17, 1998 ) (visited Apr. 8 , 1999 ) <http://www.aclu.org/news/ n091798a.html>.
See Statement by President William J. Clinton Upon Signing H.R . 4328 , 1998 U.S.C.C. A .N. 576 .
Pub . L. No. 105 - 277 , 1998 U. S.C.C. A .N. ( 112 Stat. 2681 ) 3; see also Child Online Protection Act, 144 CONG . REC. H9902 Title I § 101 (daily ed. Oct. 7 , 1998 ).
60 Internet Tax Freedom Act , Pub. L. No. 105 - 277 , 1998 U. S.C.C. A .N. ( 112 Stat. 26816 - 171O9n ) li3n .e Copyright Infringement Liability Limitation Act, Pub. L. No. 105 - 34 , 1998 U. S.C.C. A .N. ( 112 Stat. 2877 ) 3 .
n Frank James , Internet Anti-Smut Law ChallengedAs Unconstitutional,CHI . TRIB., Oct. 23 , 1998 , at 3.
2 See In the Wake of the StarrReport, CDA I Approved by House Subcommittee (Sept . 17, 1998 ) (visited Apr. 8 , 1999 ) <http://www.aclu.org/news/n091798a.html> (calling the CDA II "a Trojan Horse" ).
"' Letter from L. Anthony Sutin , Acting Attorney General, Department of Justice, to Thomas Bliley, Chairman of the Committee on Commerce, House of Representatives, 144 CONG. REC. S12741 , S12796 - 98 (daily ed. Oct. 21 , 1998 ).
Id. at S12796- 97 (citations omitted).
Civil Liberties Group Challenges Internet Porn Law , L.A. TIMES , Oct. 23 , Review to Move into the Twenty-First Century, 1997 UTAH L . REV. 765; Dan Thu Thi Phan, Note, Will Fair Use Function on the Internet? , 98 COLUM. L. REV. 169 , 188 ( 1998 ) ; Ray Moseley, Gruesome Belgian Sex Case Puts Focus on Child Abuse, CHI . TRIB., Sept. 3 , 1996 , at 6.
See Child Online Protection Act , 47 U.S.C.A. § 231 ( a)(1) (Supp . 1999 ).
97 Reno v . ACLU , 521 U.S. 844 , 878 n. 45 ( 1997 ).
98See Global Electronic Marketplace: Hearings Before the House Commerce Comm., 105th Cong . ( 1998 ) (statement of William M. Daley, Secretary of Commerce), available in 1998 WL 12762557 (discussing such characteristics in tax/tariff context); see also Jack L . Goldsmith, Against Cyberanarchy, 65 U. CHI. L. REV . 1199 , 1203 ( 1998 ) ; Eric Rothschild, No Need for CRTC to Regulate Internet , TORONTO STAR, Sept . 24 , 1998 , at A23.