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Pornography in the U.S. Supreme Court

Since the spring of 2002, the U.S. Supreme Court has decided several cases involving pornography. In what will likely be the most significant of the three, Ashcroft v. ACLU, the court upheld the constitutionality of using "community standards" to determine what sexually explicit material is harmful to minors. The other cases involve the legality of computer-generated "virtual kiddie porn" which involves no real children, a city ordinance barring X-rated "superstores," and libraries which use filtering software to block access to pornographic (but not necessarily obscene) internet sites. Here are summaries of the cases plus links to the full text of the Supreme Court decisions.


Click on each case for a longer summary:

Ashcroft vs. ACLU, 00-1293
At issue in this case was the constitutionality of the 1998 Child Online Protection Act (COPA), which attempts to limit children's access to indecent material on the Internet. In an 8-to-1 decision, the Justices came out in favor of using "community standards" as a measure for determining what material should be prohibited or regulated online. However, they remanded the case to the appeals court to determine whether the statute was unconstitutional on other grounds. Read the full text of the decision here.

Ashcroft v. Free Speech Coalition, 00-795
In this case, the Court struck down provisions of the Child Pornography Protection Act of 1996 which broadened the definition of child pornography to include images of individuals who merely appear to be minors engaging in sexual acts. The Court found that the law was so broadly written that it risked suppressing legitimate forms of artistic or political expression. Read the full text of the decision here.

City of Los Angeles v. Alameda Books, 00-799
Los Angeles attempted to stem the growth of red-light districts by prohibiting "one-stop-shopping" sex emporiums that offered more than one adult-related business under the same roof. In this case, the court upheld the zoning restriction. Read the full text of the decision here.

U.S. v. American Library Association, Inc.
The Court held that libraries that use filtering software to block Internet access to pornographic (but not necessarily obscene) web sites do not violate the First Amendment. The case was decided June 23, 2003. Read the full text of the decision here.

Ashcroft vs. ACLU, 00-1293, dealt with a challenge to the Child Online Protection Act (COPA). Passed by Congress in 1998, the law is an attempt to protect minors from exposure to Internet pornography by requiring that commercial adult websites containing "indecent" material that is "harmful to minors" use age-verification mechanisms such as credit cards or adult identification numbers. An earlier version of the law -- the 1996 Communications Decency Act -- was struck down as an unconstitutional restriction of free speech; the 1998 version attempted to address the constitutional concerns by limiting its scope to commercial websites, and carving out an exception for material that has "serious literary, artistic, political or scientific value for minors."

COPA makes adult website operators liable for criminal sanctions -- up to $50,000 in fines and six months in jail -- if children are able to access material deemed "indecent," by "contemporary community standards," for those under 16.

No one has yet been prosecuted under COPA; the ACLU brought suit as soon as the law was passed, and a federal judge in Pennsylvania agreed to block enforcement. The Third Circuit upheld the injunction, ruling that COPA's reliance on community standards improperly allows the most conservative communities to dictate what should be considered indecent.

The ACLU represented a number of plaintiffs who publish materials online, including an art gallery, Salon.com magazine, Powell's Bookstore, and the producer of a web site providing information on sexuality to disabled people. Attorney Ann Beeson claims that the law threatens the free speech rights of her clients and others on the Web who are not pornographers but whose sites have sexual content that some might feel is inappropriate for minors. Beeson argued before the court that if COPA goes into effect, her clients, and others like them, would censor themselves by keeping certain material off the Web. "What it's effectively going to do is drive a certain category of speech protected for adults from the marketplace of ideas that is the Web," Beeson said. Beeson and others opposing the law claim that using community standards to assess material on the Internet will necessarily result in the standard of the most restrictive community being applied everywhere.

In an 8-to-1 ruling issued on May 13, 2002, the Justices held that using community standards to determine what online material is harmful to minors does not violate the First Amendment. In his opinion, Justice Thomas clearly was not concerned by the fear that the law would result in the standards of the most restrictive community being applied across the country:

The publisher's burden does not change simply because it decides to distribute its material to every community in the Nation. Nor does it change because the publisher may wish to speak only to those in a community where avant garde culture is the norm, but nonetheless utilizes a medium that transmits its speech from coast to coast. If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.

The fate of COPA was not wholly determined by this ruling, however. The court decided only that "COPA's reliance on community standards to identify material that is harmful to minors does not by itself render the statute" unconstitutional, and sent the case back to the Third Circuit Court of Appeals for consideration of a number of other First Amendment concerns unrelated to the community standards test. If the appeals court finds the statute unconstitutional on other grounds, the case may appear before the Supreme Court again.

The case does not directly address the issue of how the community standards requirement applies to determining whether online material is obscene (speech that does not receive First Amendment protection) rather than merely indecent (harmful for minors but protected for adults). The court's ruling will nonetheless be highly significant in terms of the future of the "community standards" test for all sexually explicit material online.

Read the full text of the decision here.

. . . . . .

In Ashcroft v. Free Speech Coalition, 00-795, the Supreme Court struck down the Child Pornography Protection Act of 1996 (CPPA). The production or possession of actual child pornography was illegal prior to 1996; the CPPA broadened the definition of child pornography to include images that merely appear to be children engaged in sexually explicit conduct -- for example, images of adults digitally altered to look like children -- or that convey the impression that the individuals involved are minors. The rationale behind the law was that it is not only the children involved in the creation of child pornography that are harmed, but that the images themselves are harmful because they incite pedophiles to abuse children.

In a 1982 case, the Supreme Court said that child pornography, like obscenity, should not receive First Amendment protection because children were abused in its production. This case raised a bigger issue: whether the mere existence of pornographic images involving children is harmful even if no real children were involved in their creation.

The Free Speech Coalition, a group of adult-oriented businesses and artists, filed suit in federal district court in California, alleging that the law was vague and overbroad in violation of the First Amendment. They lost at trial court, but the Ninth Circuit Court of Appeals reversed.

Deputy Solicitor General Paul D. Clement argued in favor of the law before the court, saying that images of children engaged in sexual activity, whether or not they involved real children, pose a real danger to actual children because they could be used by pedophiles to entice children into illicit sexual activity or to pose for pornographic pictures. He said that the provisions at issue "are constitutional for the same basic reason that other laws prohibiting child pornography have been upheld. They protect real children from real abuse."

Clement also argued that it would be impossible to prosecute any child pornography if pornographers could claim as a defense that an image was computer-generated. Clement said that computer generated images today can be so lifelike that it would be impossible to prove that real children had been used.

The plaintiffs' arguments focused on the difficulty of applying the law. Free Speech Coalition attorney Louis Sirkin pointed out that mainstream movies such as "Traffic," "Lolita," and "Titanic," would be illegal under the law, since they all had scenes depicting minors in sexual situations. Sirkin said that the law would have "radical tragic consequences" for free speech. Earlier child pornography cases, he said, "were based on harm to real children. [This law] is limiting something because of the message. We are socially making a determination that this is speech we don't like."

In a 6-to-3 ruling issued on April 16, 2002, the Supreme Court sided with the plaintiffs, holding that the CPPA's scope was unconstitutionally overbroad. Writing for the court, Justice Kennedy noted:

The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. ... The Government has shown no more than a remote connection between speech that might encourage thoughts or actions and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it might encourage pedophiles to engage in illegal conduct.

Read the full text of the decision here.

. . . . . .

The third case heard by the court, City of Los Angeles v. Alameda Books, 00-799, didn't involve the kind of adult material can be regulated by the government, but rather the extent to which cities can ban "one-stop shopping" sex-related businesses.

Earlier rulings by the court determined that cities can require sex-related businesses to locate at prescribed distances from one another, in order to avoid the crime and other public nuisances associated with a traditional red-light district. In 1978, the city of Los Angeles passed an ordinance prohibiting adult businesses from operating within 1,000 feet of one another. In 1983, the city attempted to close what its attorneys called a "loophole" by amending the ordinance to prohibit multiple adult businesses from operating under the same roof.

In 1995, Alameda Books, which owns and operates adult bookstores and video arcades located in the same building, sued, claiming that the regulation violated the First Amendment guarantee of free speech by treating legal adult content differently from "mainstream" content. The Ninth Circuit Court of Appeals sided with Alameda Books, awarding a summary judgement striking down the ordinance on the grounds that the city had provided no evidence that two adult-oriented businesses in the same location were likely to bring more crime to the area than one. The only evidence presented in support of the ordinance was a 1977 study based in Los Angeles concluding that concentrations of adult entertainment establishments are associated with higher crime rates in surrounding communities.

The Supreme Court overruled the Ninth Circuit Court of Appeals. In a 5-to-4 vote, the Justices ruled that the zoning regulation was a legitimate exercise of the city's authority to enact regulations control crime and other deleterious "secondary effects" associated with adult-oriented businesses. Writing for the court, Justice Sandra Day O'Connor ruled that the city could reasonably rely on the 1977 study to demonstrate that its ban on "multiple-use" adult businesses served its interest in reducing crime. She wrote, "It is rational for the city to infer that reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates." O'Connor ruled that the 1977 study provided sufficient evidence to withstand a summary judgment--where a judge decides that the parties have failed to introduce evidence that raises a genuine issue of fact, and so rules on the legal arguments alone--and warranted a full trial. The case will be retried by the trial court in Los Angeles.

Read the full text of the decision here.

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