Commentary

"Our Children’s Hearts, Minds, and Libidos" - What's at Stake in the COPA Case

By Marjorie Heins

Salon.com, Riotgrrl.com, and the "Kama Sutra" screen saver are just a few of the web sites that are threatened with censorship if the Supreme Court rules against free speech in Ashcroft v. ACLU. This aptly named case -- which the Court could decide any day now -- challenges the 1998 Child Online Protection Act, which makes it a crime to depict or describe sex or nudity on the World Wide Web if the words or images are considered "prurient" and "patently offensive" according to "contemporary community standards," and if they are thought to lack "serious literary, artistic, political, or scientific value" for minors.

The last time the Supreme Court tackled this issue, it struck down the 1996 Communications Decency Act (the CDA) because it reduced the entire adult population of cyberspace to reading and viewing only what is considered "fit for children." With COPA, Congress replaced the CDA’s broad "indecency" test with a narrower "harmful to minors" legal standard. But the narrower standard still turns on the shifting conceptual sands of state or local community standards, "prurience," "serious value," and "patent offensiveness."

For example, what exactly is a "contemporary community?" New York City? Or Belzoni, Mississippi? State or local standards is a vague enough legal yardstick for traditional media, and an impossible one to administer online. Because Web publishers can’t restrict access to their sites based on geographic location, they run the risk of criminal prosecution unless they conform to the sexual tolerance level of the most puritanical city or town in America. When the Supreme Court heard oral argument in Ashcroft last November, the justices were acutely aware of this dilemma, and seemed inclined to resolve it by announcing that, at least for minors, America really has only one "contemporary community standard" for what is "harmful."

However the Supreme Court wriggles out of this legal mess, one thing it is unlikely to do is question the assumption that underlies COPA. The notion that minors are harmed by reading or viewing sexual material has had a firm hold on our psyches ever since the late 16th century when, as the historian Philippe Ariès wrote, pedagogues began to censor bawdy classics and children were "taught to conceal their bodies from each other." By the 1700s, pseudo-scientific tracts appeared in Europe detailing the pernicious effects of youthful masturbation -- everything from pimples to madness and early death. It was a logical step to ban erotic literature on the grounds that, in the words of a famous English case, it might "deprave and corrupt" youngsters by arousing "libidinous thoughts."

Today, the reasons for restricting youngsters’ access to sexually explicit material tend to be much vaguer than fears of harm from masturbation. To most folks in our society, it just seems obvious that such material is inappropriate for younger children, and may give older ones the wrong ideas. But these are not the types of specific harms that are usually needed to justify censorship laws. In Ashcroft, the government’s lawyers argue that no evidence of harm is necessary to uphold the law – it’s enough that Congress wanted to foster the "moral development" of youth.

Laws like COPA certainly do send a message of moral disapproval to youngsters, but it’s a hypocritical one, given the popularity of pornography among adults. Censorship laws do nothing to educate youth about sexual realities or sexual responsibility. In fact, they often perpetuate misinformation about critical issues like contraception, AIDS, STDs, and abortion, and silence speech about sexual orientation altogether.

Two journalists wrote in 1997: "There is no more enduring struggle in the culture wars than the one for our children’s hearts, minds, and libidos." If the Supreme Court strikes down COPA, Congress should stop passing Internet censorship laws and focus instead on education that can give youngsters the critical thinking skills they need to make sense of our sex-soaked culture.

April 18, 2002

Update: On May 13, 2002, the Supreme Court ruled that the use of an unpredictable "community standards" test to determine what online expression is "harmful to minors" is not in itself enough to invalidate the Child Online Protection Act. It sent the case back to the lower courts to determine whether COPA is unconstitutional on other grounds. In March 2003, the Third Circuit affirmed a preliminary injunction against COPA, ruling that the law's definitions of "harmful to minors" and "for commercial purposes" are too broad and vague to withstand strict scrutiny under the First Amendment, and there are less burdensome alternatives that could shield minors from "harmful to minors" expression. Again, the government appealed, and on June 29, 2004, the Supreme Court affirmed the preliminary injunction.. See The Right Result, the Wrong Reason.

On March 22, 2007, after a full trial, the district court invalidated COPA on the grounds that it was vague and overbroad, and that voluntary use of Internet filters was a "less restrictive" way of shielding minors than a criminal law. See "COPA is Struck Down Yet Again." On July 22, 2008, the Third Circuit affirmed Judge Reed's decision. On January 20, 2009, the Supreme Court sounded the death knell for COPA when it declined to review the Third Circuit's decision.