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Sometimes you win a court victory that creates more problems than if you’d lost. That’s the problem faced by challengers of the federal Child Online Protection Act, which penalizes any commercial entity whose Web site exposes children to content that is “harmful to minors.” The U.S. Supreme Court has agreed to hear the government’s appeal of a 3rd Circuit ruling that COPA would restrict First Amendment freedoms. COPA, of course, is the second major attempt by Congress to regulate content on the Internet; the first effort, the Communications Decency Act, was passed in 1996 and struck down by the U.S. Supreme Court in ringing terms in Reno v. ACLU (1997). But the terms of the 3rd Circuit opinion may put the civil libertarian and content provider plaintiffs in the position of having to make some uncomfortable arguments in order to preserve their victory. Specifically, they may have to argue that — at least when it comes to the Internet — the system of obscenity regulation refined by federal courts over three decades is obsolete. It seems unlikely that this is a message that most of the justices will want to hear. Even worse, this is not a conclusion the challengers ever asked the lower court to reach. “The 3rd Circuit could have saved us all a lot of grief if they’d just summarily affirmed,” complains a lawyer for one of the plaintiffs in the case. One can understand his exasperation. Before district court Judge Lowell Reed, the American Civil Liberties Union (leading a coalition of advocacy groups and content providers) won straight-up on its arguments. The plaintiffs argued that COPA’s criminal sanctions were not the least restrictive means of controlling content that was harmful to minors (stuff that would be legal for adults but obscene if minors were to view it). Reed agreed with that argument, and he also agreed that COPA’s affirmative defenses — for example, enforcing age limits by requiring a credit card for access, thereby escaping liability — were too burdensome on protected speech. (Experts testified that when Web surfers are required to ID themselves, they quit visiting sites, meaning smaller audiences and income levels.) The judge also agreed with the plaintiffs that, on its face, COPA seemed to apply to a broad range of Web sites — not just the commercial pornographers that Congress was trying to constrain. Judge Reed granted a preliminary injunction, the government predictably appealed, and the case was off to the 3rd Circuit. Instead of simply analyzing the lower court’s legal reasoning, the appellate court viewed the First Amendment questions de novo. In doing so, it struck out in a totally different direction: It held that COPA was likely unconstitutional because it applies local “community standards” to the inherently global, borderless, nongeographic medium of the Internet. A bit of history about the law of obscenity and the conceptual offshoot “harmful to minors” is in order. Back in 1973, in Miller v. California, the Supreme Court came up with a clever way of dealing with so-called obscene content. The court held that the definition of obscenity depends at least in part on the standards of local communities. Content acceptable in New York or in San Francisco might not be in Paducah, Washington, or Waco, Texas, the court reasoned, unless the content had serious literary, artistic, political, or other social value. The decision effectively removed the high court from deciding at a national level what kinds of sexual content can be punished. The doctrine of community standards didn’t make many people happy. The civil libertarians thought it unpredictable and restrictive, while the pro-censorship forces thought it not restrictive enough. As a practical matter, however, the community standards doctrine brought comparative stability to obscenity law, which had been shaken up by the social changes of the beatnik and Beatles eras. Miller v. California didn’t consider what obscenity means when kids are in the audience, although the Court had suggested in another case that there is something called “obscenity as to minors” — material that’s legal for adults but that can be regulated much the way obscenity is when children are among the viewing audience. Subsequent federal cases suggested that community standards applied in these cases, too. And this brings us back to the constitutionality of COPA. The problem, the 3rd Circuit explained, is that you can’t control access to a Web site — at least not with current technology. Even if the content in question is not harmful to minors in your locale, a kid in a different community, with more restrictive standards, may find her way to it. What COPA effectively requires, the court of appeals concluded, is that every Web site operator design content not harmful to minors in every jurisdiction in the country, or else check everyone’s ID at the door. Either alternative is excessively burdensome. The result? COPA is unconstitutional because community standards can’t be applied to the Internet. What will replace the community standards doctrine when it comes to the World Wide Web? Sorry, folks — the court isn’t saying. The most it gives us is this: “Each medium of expression must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” That statement spells trouble to civil libertarians and content producers. There’s only one other medium in the U.S. that has its own special First Amendment regime: broadcasting. And broadcasting has a licensing system, a special regulatory setup, and, worst of all, special content restrictions based on national, not local, standards. The last thing the plaintiffs want is for their COPA challenge to lead to something like broadcasting regulation. “I don’t think you can have a national standard for this sort of content,” says one lawyer who’s working on the Supreme Court briefs. “This is a problem where you have an Internet shooting stuff all over the place.” Plus, the Internet is a global medium. A national obscenity standard would either shoehorn the world’s content standards into a U.S. model or be ineffective in screening content from other countries. There is a flip side of a national content standard. It is that we should seek better enforcement of geographic boundaries for the Internet through technology. With such technologies in place, we could enforce either local community standards or a national standard, and the 3rd Circuit’s major problem with COPA would vanish. That’s the kind of measure a French court has demanded of Yahoo, in fact. That court ordered Yahoo to implement a scheme that guarantees that no inappropriate or illegal content (such as Nazi propaganda) ever slip over national borders into the land of Bordeaux and foie gras. The problem here, of course, is that such a fix — even if it were effective — would eliminate the things we value about the Internet: its global reach, decentralization, and ubiquity. It would balkanize the Net, reproducing in cyberspace all the gatekeepers and border patrols we have in real space. But there may be a different sort of technology fix that would preserve the meaning of community standards. When we look at the history of content regulation, what lawmakers have been trying to preserve is not government authority to regulate content but community integrity — the ability of communities to maintain the character of their public spaces without being confronted with, say, sexually oriented businesses like adult bookstores and strip clubs. Government does not have the authority to invade the privacy of a home to root out obscenity — regardless of community standards. That standard was established in the Supreme Court’s 1969 decision in Stanley v. Georgia. With that case in mind, the social interest in regulating obscene and harmful-to-minors content has to do with public spaces. Which raises an interesting question: What if community standards still mean something, and are still worth preserving, but now it’s up to individual citizens rather than police officers to enforce them? Governmental attempts to control content in a top-down fashion — by crafting a national standard or by providing federal backing for the police’s enforcement of local ones — invariably create two problems: The measures are simultaneously overbroad (with regard to what adults can view) and ineffective (with regard to protecting children). In contrast, the personal computer and the Internet have empowered individuals to shape the character of their public space. Some people may try to use filtering software to enforce those choices. Others may forgo the clumsy world of commercial filtering tools and simply rely on their own ability to choose where they go and what they and their children see on the Internet. It’s not a perfect system, of course — but it’s way better, far more nuanced, and far more protective of First Amendment interests than COPA is. It’s also a system that parents are used to enforcing in the offline world. Every parent knows that his or her children will encounter things that it would be preferable that they not see. What parents have relied on, historically, has been the ability to instill in children our own community standards — internalized values that remain with kids when parents and police are out of sight. The Internet and the Web don’t pose any new problems — just a digital version of a very old one. Once you uncouple the notion of community standards from the prerogative of police departments to enforce them — once you begin to recognize that the true enforcers of community standards on the Internet are the members of communities themselves, including parents — you begin to see a way clear of the legal dilemma the 3rd Circuit has created. Maybe the fix isn’t to dispense with community standards altogether. Instead, it’s to understand them differently in a medium that empowers users to make better choices than the government ever could. With this approach to community standards, you may even come up with a medium-specific First Amendment framework that we all can live with. Mike Godwin is national correspondent of IP Worldwide , an affiliate of The American Lawyer and law.com, and was one of the lawyers for the plaintiffs in Reno v. ACLU , the 1997 case in which the Supreme Court struck down the Communications Decency Act.

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