Child Abuse and the Law - Child Pornography Laws
- appeal to a prurient interest in sex;
- be patently offensive in light of community standards; and
- lack serious literary, artistic, political, or scientific value.
Since 1982 child pornography has been banned by the U.S. Supreme Court ruling New York v. Ferber (458 U.S. 747), which held that pornography depicting children engaged in sexually explicit acts can be banned, whether or not it is obscene, because of the state's interest in protecting children from sexual exploitation. In other words, such images are not protected by the First Amendment. The Child Pornography Prevention Act of 1996 (Public Law 104-208) added a definition of child pornography, stating that an actual minor need not be used in creating a depiction in order for the depiction to constitute child pornography.
In October 1998, in an effort to further protect children from sexual predators who target minors through the Internet, Congress enacted the Protection of Children from Sexual Predators Act (Public Law 105-314). The legislation provides punishment for any individual who knowingly contacts, or tries to contact, children under eighteen in order to engage in criminal sexual activity, or who knowingly transfers obscene material to children.
Protecting Children from Pornography on the Internet
Congressional debate continues on how the government should enforce obscenity standards in cyberspace. Some policy makers believe any obscenity standards could interfere with free speech and would be difficult to enforce, while others believe this is an issue relating to child protection, not to the First Amendment.
COMMUNICATIONS DECENCY ACT (CDA). In 1996 Congress first attempted to protect minors from Internet material that, judged under contemporary community standards, would be considered "obscene or indecent" for them. Congress passed the Communications Decency Act (CDA), or Title V of the Telecommunications Act (Public Law 104-104), which makes it a federal crime to use any facility or means of interstate or foreign commerce to entice or force any person under age eighteen to engage in prostitution or any sexual act.
On June 26, 1997, the U.S. Supreme Court, in Reno v. American Civil Liberties Union (521 U.S. 844), held by a 7–2 decision that the Communications Decency Act "abridges the freedom of speech protected by the First Amendment" because "in order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."
CHILD ONLINE PROTECTION ACT (COPA). In October 1998 Congress enacted the Child Online Protection Act (COPA; Public Law 105-277). In light of the U.S. Supreme Court's ruling on the CDA, Congress narrowed the scope of COPA to include just the material published on the World Wide Web. In comparison, the CDA included all communications over the Internet. COPA applied only to persons who are in the business of distributing pictures, articles, images, and video and audio recordings for the purpose of making a profit. In addition, COPA limited the materials to those that are considered harmful to children, unlike the CDA, which bans all "indecent" and "patently offensive" communications.
Persons liable to COPA violations include all those who place such obscene material on the Internet in order to earn a profit (although it is not necessary that they make a profit). The person may be a Web site administrator who creates and maintains a Web site, a content provider such as an online bookstore or magazine, or a content contributor who writes or creates graphics for communications media. COPA requires all commercial sites on the Internet to obtain credit card numbers or adult identification numbers from users. Violation of COPA entails heavy fines ($50,000–$150,000 per day) and up to six months in jail.
COPA, however, exempts the following persons from liability:
- a telecommunications carrier who provides telecommunications services
- a person who provides an Internet access service
- a person who provides an Internet information location tool
- a person engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination of these functions) of a communication made by another person, without alteration or deletion of some parts of the communication content
COPA was set to be put into effect on November 29, 1998, but on October 22, 1998, plaintiffs, including the American Civil Liberties Union (ACLU), commercial World Wide Web providers, and Web site users who used the materials described by COPA, filed a complaint with the U.S. District Court for the Eastern District of Pennsylvania, challenging the constitutionality of COPA under the First and Fifth Amendments. The plaintiffs argued that they would be forced to either establish age-verification barriers or delete materials from their Web sites that may be perceived to violate COPA. The plaintiffs asked the court to issue a temporary restraining order prohibiting the U.S. attorney general from enforcing COPA. U.S. District Judge Lowell A. Reed Jr. issued a temporary restraining order against the enforcement of COPA.
On February 1, 1999, in American Civil Liberties Union v. Reno (31 F.†Supp. 2d 473, 476 [E.D. Pa. 1999]), U.S. District Judge Reed, Jr., issued a preliminary injunction against the enforcement of COPA. Judge Reed ruled:
The Supreme Court has repeatedly stated that the free speech rights of adults may not be reduced to allow them to read only what is acceptable for children…. While the public certainly has an interest in protecting its minors, the public interest is not served by the enforcement of an unconstitutional law. Indeed, to the extent that other members of the public who are not parties to this lawsuit may be affected by the statute, the interest of the public is served by preservation of the status quo until such time that this Court may ultimately rule on the merits of plaintiffs' claims at trial.
On June 22, 2000, the U.S. Court of Appeals for the Third Circuit, in American Civil Liberties Union v. Reno (217 F.3d 162 [3d Cir. 2000]), affirmed Judge Reed's ruling. Upon appeal by the U.S. attorney general in 2001, the U.S. Court of Appeals ruled in Ashcroft v. American Civil Liberties Union et al. that COPA violates the First Amendment because it relies, in part, on "contemporary community standards" (per Roth v. United States, 354 U.S. 476 [1957]) to determine whether or not certain materials are harmful to children. According to the appeals court, the Roth decision could not be applied to the Internet or the World Wide Web because juries across the country would have different community standards. Some juries might apply the "most puritan" community standards, which would put too much burden on First Amendment freedoms. The court also found it unnecessary to review the rest of the law.
Subsequently, the government appealed its case to the U.S. Supreme Court. On May 13, 2002, in Ashcroft v. American Civil Liberties Union et al. (535 U.S. 564), the Supreme Court limited its decision to ruling that COPA's use of community standards to identify material harmful to children does not necessarily make it unconstitutional as far as First Amendment freedoms are concerned. It further found the appeals court decision incomplete and sent the case back for further proceedings. The Court did not lift the injunction against the COPA enforcement.
On remand, the U.S. Court of Appeals of the Third Circuit again affirmed the U.S. District Court issuance of a preliminary injunction against COPA. On March 6, 2003, the appellate court, in American Civil Liberties Union v. Ashcroft (322 F.3d 240 [2003]), held that, among other things, "COPA is clearly a content-based restriction on speech." The court stated:
We conclude that the statute is substantially overbroad in that it places significant burdens on Web publishers' communication of speech that is constitutionally protected as to adults and adults' ability to access such speech. In so doing, COPA encroaches upon a significant amount of protected speech beyond that which the Government may target constitutionally in preventing children's exposure to material that is obscene for minors.
After the 2003 Third Circuit Court ruling, the federal government again sought review by the U.S. Supreme Court. On June 29, 2004, over five years after COPA was enacted, the U.S. Supreme Court, by a vote of 5–4, upheld the U.S. District Court's 1999 injunction against the enforcement of COPA. In Ashcroft v. American Civil Liberties Union et al. (No. 03-218), the Supreme Court returned the case to the District Court, saying that the government failed to show that there are no "less restrictive alternatives" to COPA. The high court wrote:
Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid … and that the Government bear the burden of showing their constitutionality.
CHILD PORNOGRAPHY PREVENTION ACT (CPPA). On April 16, 2002, the U.S. Supreme Court resolved the question of whether another 1996 law, the Child Pornography Prevention Act (CPPA; Public Law 104-208), is unconstitutional because it prohibits free speech that is not obscene based on Miller nor child pornography based on Ferber. The CPPA, in part, bans any visual depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct." Such depiction, called virtual child pornography, includes computer-generated images and images using youthful-looking adults. The CPPA also prohibits the advertisement or promotion of any sexually explicit image that "conveys the impression" that children are performing sexual acts.
The Supreme Court, in Ashcroft v. Free Speech Coalition et al. (535 U.S. 234), ruled 6–3 that banning virtual child pornography is unconstitutional because, unlike Ferber, actual children are not used in its production. Moreover, the high court claimed that the government cannot prohibit material fit for adults just because children might get hold of it. The court also struck down the government's argument that child pornography whets the appetites of pedophiles and encourages them to commit unlawful acts. As to that part of the law that bans material that "conveys the impression" it contains children performing sexual acts, the justices noted that anyone found in possession of such "mislabeled" material could be prosecuted.
CHILDREN'S INTERNET PROTECTION ACT (CIPA). The Children's Internet Protection Act (CIPA; Public Law 106-554), enacted by Congress in 2000, requires all public libraries receiving federal funds to install software that blocks visual depictions of obscenity, child pornography, and material harmful to children. Libraries, library associations, library patrons, and some Web sites filed lawsuits challenging the law.
Two lawsuits in Philadelphia, which were consolidated, were tried on May 31, 2002, and, as required by law, were decided by a special three-judge federal panel. In American Library Association v. United States (Civil Action No. 01-1303) and Multnomah County Public Library v. United States (201 F.†Supp. 2d 401), the panel unanimously ruled that CIPA abridges the First Amendment rights of library patrons. The court found that limitations in filtering programs might also block access to other material protected by First Amendment speech.
The government filed an appeal to the U.S. Supreme Court, which delivered its ruling on June 23, 2003. In United States v. American Library Association, Inc., et al. (No. 02-361), by a 6–3 vote, the high court reversed the lower court decision, saying that Congress can require public libraries receiving federal funds to install computer software that blocks access to Internet pornography. Chief Justice Rehnquist delivered the opinion and was joined by Justices O'Connor, Scalia, and Thomas. Justices Breyer and Kennedy, joining in the judgment of the plurality but not with its opinion, added that CIPA allows libraries to let any adult access a blocked Web site if the adult asks a librarian to unblock a specific site or to disable the entire computer filter.
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