Press Release

For Immediate Release - May 13, 2002

SUPREME COURT PUNTS; DUCKS QUESTION OF WHAT IS
"HARMFUL TO MINORS" AND OTHER FIRST AMENDMENT QUESTIONS

The Supreme Court decision today in Ashcroft v. ACLU, the constitutional challenge to the Child Online Protection Act (COPA) "did not resolve the key legal questions about Congress's latest attempt to shield minors from sexual material on the World Wide Web," according to Joan Bertin, Executive Director of the National Coalition Against Censorship, which, along with the Free Expression Policy Project, filed a friend-of-the-court brief in the case.

The Supreme Court vacated the holding of the Third Circuit Court of Appeals, which had struck down the statute because of its reliance on "community standards" to determine what material is harmful to minors. According to the Third Circuit, "community standards" is virtually impossible to define in the global universe of the Web. A majority of the Supreme Court concluded that this alone was not enough to invalidate the law, but noted that serious constitutional problems remained. The injunction against the law remains in effect while the lower courts reconsider.

Among the serious constitutional problems, which will now be addressed by the lower courts, is the government's failure to demonstrate a compelling need for COPA. As argued in the NCAC/FEPP brief, the government assumed minors are harmed from reading or viewing sexual material, but there is no evidence this is true.

The brief, filed on behalf of sexuality scholars and professional associations, including the Society for the Scientific Study of Sexuality, the Institute for Advanced Study of Human Sexuality, the Sexual Health Network, and the American Board of Sexology, also argued that COPA is "void for vagueness" because "there is no way to identify what words or images would be considered sufficiently prurient, offensive, and lacking in serious value for minors to violate the law in any particular community..... [Also], what is patently offensive, appeals to a prurient interest, or lacks serious value for a 6 year-old is far different from what is offensive, prurient, or lacking in value for a teenager on the verge of adulthood."

Marjorie Heins, principal author of the brief, noted that earlier this month the National Research Council, commissioned by Congress to study the issue, concluded that there is no consensus among experts about the impact of sexually explicit material on youngsters. The NRC report echoed a point made in a newly-published FEPP report, Media Literacy: An Alternative to Censorship, that media literacy education can do a better job than censorship laws in teaching youth how to deal with or avoid unwanted material.

The sexuality scholars' brief is available online at http://www.fepproject.org/courtbriefs/ashcroft.pdf.