On May 13, 2002, the United States Supreme Court reversed the landmark decision of the Third Circuit Court of Appeals, concluding that application of varying community standards to Internet communications does not, in itself, render the Child Online Protection Act ("COPA") unconstitutionally overbroad. This was an unusual case for the High Court in that it was an appeal from a preliminary injunction; the Court rarely agrees to review cases that are not final. The majority of Justices decided to "remand" (read: send back) the case to the Court of Appeals for further consideration of the constitutional issues raised by the parties.

The narrow grounds upon which the Third Circuit invalidated COPA were, to be sure, ground-breaking. Striking down the law based on the community standards issue essentially forced the Supreme Court to take the case, reverse it, and send it back for a final decision on the other constitutional issues. Thus, the preliminary injunction will remain in effect while the courts work this out.

The Third Circuit Court of Appeal could still readily declare COPA unconstitutional on vagueness or other overbreadth grounds, or even strike the law down based on failure to meet the strict scrutiny test applicable to content-based restrictions on speech. For those Webmasters seeking to provide free hardcore materials on the Web, this additional "hold time" will be seen as a benefit. But for the reasons which follow, the Supreme Court's decision has struck a critical blow to First Amendment jurisprudence, and further complicates the issues relating to online obscenity.

BACKGROUND

Although much has been written and said about the COPA law and its various court challenges, it is worth restating that the Third Circuit Court of Appeal invalidated COPA based on the perceived inability to constitutionally apply the varying local community standards, which exist throughout the United States, to global communications such as those on the World Wide Web. Any law that is based on such a "heckler's veto" by the most prudish community is, by definition, overbroad and prohibits a substantial amount of protected expression, according to the Circuit Court. Under the reasoning of Justice Thomas, who delivered the Judgment of the Court in the COPA case, these concerns were insufficient to justify striking down the law. Justice Thomas concluded: "It is sufficient to note that community standards need not be defined by reference to precise geographic area."

The Supreme Court first raised the community standards concern in Reno v. ACLU, and noted that the community standards criteria as applied to the Internet means that any communications available to a nationwide audience will be judged by the standards of the most puritanical community. Responding to this concern in the COPA case, Justices Thomas, Renquist and Scalia reason, "[t]he fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional." Fortunately, the remaining 6 Justices do not share that same hard line view, as discussed later.

OBSCENITY VERSUS COPA

The guilt or innocence of a Webmaster alleged to have distributed obscene material via the World Wide Web may now be left to the vagaries of individual jurors who will be instructed to apply the concept of community standards without geographic specification. Justice Thomas refused to speculate as to what a hypothetical jury may or may not do in such instance. The true landmine lurking in this Opinion is its effect on adult obscenity prosecutions, not its application to COPA. Justice Thomas states, "[t]he CDA's ban on the knowing transmission of obscene messages survived scrutiny because obscene speech enjoys no First Amendment protection." What? It is beyond dispute that the obscenity provisions were never challenged in Reno, and no such ruling has ever been rendered by the United State Supreme Court. While Justice Thomas later refers to this ruling as a "suggestion that the application of the CDA to obscene speech was constitutional," it is clear that the majority of Supreme Court justices do not consider the community standards issue, in itself, to justify a finding that COPA is unconstitutional.

Justice Thomas later reveals the real concern underlying the decision: "If we were to hold COPA unconstitutional because of its use of community standards, federal obscenity statutes would likely also be unconstitutional as applied to the Web." The Supreme Court declined to prevent the Department of Justice from prosecuting obscenity on the Internet by striking down COPA, and reversed a good decision by the Third Circuit Court of Appeals.

NOW WHAT?

For years, Adult Webmasters have been counseled to comply with COPA regardless of its constitutionality or enforceability. Keeping erotica away from minors is simply the right thing to do, and lessens the odds of being successfully prosecuted for obscenity violations. Providing free adult imagery to minors also undermines the legitimate pay site industry that is struggling to make a profit while contemporaneously keeping adult material away from children. Accordingly, the practical effect of the Court's decision, which may ultimately result in COPA being upheld, is not necessarily a negative result for the adult industry.
The tragedy in this case is the fact that the Supreme Court was forced to address the community standards issue, which parenthetically was not even raised or briefed by the parties to the underlying litigation. The failure to raise that issue in the lower courts may well have been an intentional, well-reasoned decision by the ACLU, and its allies, so that the Supreme Court would not be provided with an opportunity to do exactly what it did in this case. After the Court's recent decision, adult Webmasters will find it more difficult to complain about being held to widely inconsistent and inherently unknowable community standards throughout the United States. Webmasters will simply have to play the odds because: "[n]ational distributors choosing to send their products in interstate travels [are] forced to cope with the community standards of every hamlet into which their goods [might] wander."

RAYS OF HOPE

The concurring opinions issued in the COPA case provide some rays of hope for the continued viability of the community standards argument, however. Justice O'Connor notes:
"But Respondent's failure to prove substantial overbreadth on a facial challenge in this case still leaves open the possibility that the use of local community standards will cause problems for regulation for obscenity on the Internet, for adults as well as children, in future cases. In an as-applied challenge, for instance, individual litigants may still dispute that the standards of a community more restrictive than theirs should apply to them."

Accordingly, adult Webmasters may be forced to make the inconsistent community standards argument on a case-by-case basis, as a defense to criminal prosecutions at the state or federal levels. While this may not sound like the ideal forum within which to comfortably make constitutional law, it is one avenue for potential success on this issue. Also important to note is the fact that 6 of the 9 Justices expressed some concern with application of community standard to the Internet, even if that concern did not warrant invalidation of the legislation by itself. It may be that the Third Circuit, after considering the other First Amendment issues raised by the parties, will conclude that the law is unconstitutionally overbroad based, in part, on the application of inconsistent community standards. Until then, webmasters remain potentially exposed to obscenity prosecutions based, in part, on community standards.

COMMUNITY BLOCKING

Interestingly, the Court noted that under current technology, it does not appear that a speaker on the Web possesses the ability to communicate only with individuals located in targeted geographic communities. As technology develops, particularly the use of global positioning satellites (GPS) and other locating devices, Webmasters may soon be capable of geographically blocking certain Internet communications based on the approximate location of the end user. In fact, the United States Patent Office has already accepted a Patent Application for such technology.

In addition, the standards of any particular community may become more discernable as time and technology move forward. Imagine a Website containing the acceptability ratings for every community within the United States of virtually every type of sexual content, based on statistically accurate Gallup Polls?. Such information compilation is certainly not beyond comprehension, and becomes a more realistic proposition as time goes on. Such technology and information may at least partially alleviate some of the concerns with the application of local community standards to the Internet.

Significantly, the government, in its briefing of the COPA case, suggested that a national standard for "harmful to minors" material be adopted. Justice O'Connor would have resolved this case by adopting a national standard for defining obscenity on the Internet. While that would certainly be one way to deal with the issue in the courts, it may happen without court intervention. With the rampant homogenization occurring at an alarming rate in the United States, resulting in cookie-cutter communities indistinguishable from each other, a national standard may develop as a practical matter regardless of developments in First Amendment law.

CONCLUSION

In the meantime, the law of obscenity and the Internet has recently become even more confused, with the plurality decision issued in the COPA case. The Third Circuit has now been handed the daunting task of evaluating the multitude of other constitutional arguments raised as a basis for invalidating COPA. That decision will likely be reviewed again by the U.S. Supreme Court, which will inevitably be known as COPA II.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters.
You can reach Lawrence Walters atLarry@LawrenceWalters.com or www.FirstAmendment.com.