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Sex has long been a problem for the Supreme Court. In cases involving John Cleland’s “Memoirs of a Woman of Pleasure” (aka Fanny Hill), D.H. Lawrence’s “Lady Chatterly’s Lover,” and other similar materials, the Court has struggled to define “obscenity” and the limits of First Amendment protection for sexual expression. The task of drawing lines has always been daunting. As Justice Potter Stewart observed, such cases require the Court to “define what may be indefinable.” His response, “I know it when I see it,” suggests the frustration this effort engenders. During the past term, three cases presented questions about the scope of First Amendment protections to be afforded sexual expression. The fractured opinions reveal the continuing fault lines in First Amendment jurisprudence — and also reflect the Court’s willingness to wrestle with questions of sexual expression. LOLITA, ROMEO, AND JULIET Curiously, the case that seemed most controversial yielded the most clarity and consensus. Ashcroft v. Free Speech Coalition involved a challenge to the Child Pornography Prevention Act of 1996. The CPPA targeted “virtual” child pornography and simulations that appear to be, or are marketed as, sexual images of minors. The film “Lolita” and some renditions of Shakespeare’s “Romeo and Juliet” could qualify as child pornography under the CPPA, and illustrate its overbreadth and potential application to non-obscene material entitled to First Amendment protection. In New York v. Ferber (1982), the Court had upheld a ban on child pornography because of the compelling interest in protecting actual children from exploitation in creating such material. However, since no child is harmed and no crime is committed in producing virtual or simulated images, Ferber did not address the questions posed by the CPPA. Recognizing this, the government in Free Speech Coalition claimed that virtual or simulated child pornography leads to sexual abuse of children because it “whets the appetite” of pedophiles who use it to lure children into sexual activity. The Court observed, however, that “many things innocent in themselves,” such as candy, “may be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused.” The key to the decision is the Court’s reaffirmation of the “vital distinctions between words and deeds, between ideas and action.” That is, the First Amendment protects the right to think bad thoughts, but not to act on them. Since the CPPA criminalized certain fictional images — representations of the idea of child pornography — the Court aptly observed that through the CPPA “the government seeks to control thought.” The Court thus rejected the government’s principal argument and concluded that “The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.” Although the subject matter of the case was controversial, the legal underpinnings for the decision were well-established. As the Court stated two years ago: “The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” Free Speech Coalition reinforces these important principles. PROTECTING CHILDREN? The Free Speech Coalition themes of sexual expression and protection of children also appeared in Ashcroft v. American Civil Liberties Union, a challenge to the Child Online Protection Act (COPA), which was designed to screen online sexual materials from minors. But here there was little consensus. In Free Speech Coalition, Justice Anthony Kennedy’s opinion spoke for five justices, and two other justices concurred at least in part. By contrast, in ACLU, five separate opinions resulted in agreement only on a remand. COPA targets “communications for commercial purposes” on the Internet that are made “knowingly” and are “harmful to minors.” “Harmful to minors” is similar to the community-standards obscenity test that the Court formulated in Miller v. California (1973), but modified for minors. So, in COPA, the term encompasses material that under contemporary community standards is designed to appeal to minors’ prurient interests, describes sexual activity in a patently offensive manner for minors, and lacks serious literary, artistic, political, or scientific value for minors. The 3rd U.S. Circuit Court of Appeals held that reliance on “community standards” rendered the statute unconstitutional, since “the most puritan community” could effectively exercise a veto on online material. In the Supreme Court, only Justice John Paul Stevens embraced this conclusion. The rest of the Court found this approach flawed, but was otherwise divided. Three justices did not find the statute inherently unconstitutional because of the community standards element, but concluded that other constitutional issues, such as vagueness, could make it invalid. Three expressed doubts about the use of community standards, but said that additional facts were required for a determination. The two remaining justices advocated use of a nationwide, rather than local, notion of community standards for purposes of regulating the Internet. Significantly, a majority of the Court expressed reservations about the constitutionality of COPA. They also agreed on the need to explore a wider range of constitutional issues and to consider how to apply First Amendment principles developed in real space to cyberspace. UNDER ONE ROOF The Court also found itself divided in a case very much located in the physical world. In City of Los Angeles v. Alameda Books, the Court revisited zoning ordinances regulating adult entertainment. Alameda Books involved a prohibition on multiple adult enterprises, in this case a bookstore and a video store, under a single roof. The ordinance was enacted in 1983 to close a loophole that prohibited adult entertainment stores from being located within 1,000 feet of each other. The prior law was based on a 1977 study showing higher crime rates in areas with concentrations of adult establishments. Justice Sandra Day O’Connor, writing for four members of the Court, held that the 1977 study was sufficient to justify the later prohibition on multiple establishments in the same building, while Justice David Souter, also writing for four members, disagreed. He reasoned that the ordinance would not reduce crime but only add to the expense of operating adult businesses. Casting the deciding vote, Justice Kennedy concurred in the result — to reverse summary judgment — but was concerned about the expansion of the secondary effects doctrine. He agreed with Justice Souter that additional fact finding was necessary to determine whether the ordinance was justifiable. The scope of the secondary effects doctrine has been uncertain since the Court’s splintered decision in City of Erie v. Pap’s A.M. (2000), which upheld a prohibition on public nudity to counter a proliferation of live nude entertainment. In Pap’s, Justices Stevens and Ruth Bader Ginsburg attacked the plurality opinion as an unprecedented expansion of the secondary effects doctrine: “Until now, the ‘secondary effects’ of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify the total suppression of protected speech. Indeed, the plurality opinion concludes that admittedly trivial advancements of a State’s interests may provide the basis for censorship.” Justice Souter, in partial agreement, expressed the view that “government must toe the mark more carefully” to justify infringing speech. Given the alarms raised about the secondary effects doctrine in Pap’s, the fact that a majority of the Court in Alameda Books expressed concerns about the doctrine has considerable significance. Justice Kennedy’s opinion is particularly instructive: “A newspaper factory may cause pollution, and a billboard may obstruct a view. These secondary consequences are not always immune from regulations by zoning laws even though they are produced by speech . … On the other hand, a city may not regulate the secondary effects of speech by suppressing the speech itself.” LOOKING AHEAD First Amendment cases tend to defy traditional “liberal” and “conservative” characterizations, and cases dealing with sexual expression are no exception. This term’s cases again demonstrate the complexity of the law in this area, and the changing circumstances it must address — from global conversation on the Internet to the ability to create virtual images. Free Speech Coalition reveals the Court’s willingness to undertake a principled analysis of highly volatile and politicized issues. And in Alameda Books, even the fractured opinions display a seriousness of purpose and sense of gravity indicative of a deep respect for the First Amendment. This thoughtfulness will be a skill vital for the Court to maintain, as it inevitably will face in the near future even more perplexing questions about the meaning of the First Amendment. Joan E. Bertin is executive director of the National Coalition Against Censorship, in New York City.

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