Amicus Curiae Brief — Ashcroft v. American Civil Liberties Union

-RECTIV=D | (5)

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,

Petitioner,

—V,—

AMERICAN CIVIL LIBERTIES UNION, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF AMICI CURIAE OF MORALITY IN MEDIA, INC.,

FAMILY RESEARCH COUNCIL, AND THE ETHICS

& RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN

BAPTISTS CONVENTION IN SUPPORT OF PETITIONER

JANET M. LARUE PAUL J. MCGEADY

Co-Counsel Counsel of Record

Family Research Council ROBIN S. WHITEHEAD

801 G. Street, N.W. Co-Counsel

Washington, D.C. 20001 Morality in Media, Inc.

(202) 393-2100 475 Riverside Drive

New York, New York 10115

HANNON ROYCE

oma (212) 870-3232

Co-Counsel

Ethics & Religious Liberty Commission

of the Southern Baptists Convention

505 Second Street, N.E.

Washington, D.C. 20002

(202) 547-8105

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TABLE OF CONTENTS

TABLE OF ARTIS IIB .ccec.nsesnrsssceniieuenciotiettinamiaiiannae

INTEREST OF AMICI CURIAE......+0000000- iveciieciapiaidaiiiaee

ARGUMENT ..........:-:0000: snebniaienied enicinhiaviniindininiaiaaa

1. THE THIRD CIRCUIT ERRED IN ITS HOLDING THAT

Il. IF THE COURT OF APPEALS HOLDING THAT

"COMMUNITY STANDARDS" ARE TO. BE

DETERMINED ONLY ON A GEOGRAPHIC BASIS AS

APPLIED TO THE WORLD WIDE WEB IS AFFIRMED,

THEN OBSCENITY LAWS RELATING TO THE

WORLD WIDE WEB WOULD BE INVALID

“HARMFUL TO MINORS" MATERIAL

COMMUNICATED BY MEANS OF THE INTERNET

INTRUDES INTO THE HOME AND IS READILY

ACCESSIBLE TO CHILDREN. AS SUCH, IT CAN BE

CONSIDERED A FORM OF "NUISANCE SPEECH"

THAT NEED NOT MEET THE "COMMUNITY

STANDARDS" PRONGS OF MILLER OR GINSBERG

TABLE OF AUTHORITIES

CASES

ACLU v. Reno, 217 F.3d 162 (3 Cir. 2000)............00-0000+ 5, passim

Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)... 17

Breard v. Alexandria, 341 U.S. 622 (1951) .....cccccccesseesseeseeneeeenees 16

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

suuininihidenieieandidiaidaianbinbaibddalentdedeasdtingtianengetsiaumicredeence meee 14, 15, 16, 18

Denver Area Educational Telecommunications Consortium v.

I icra didendepebcasennenencnenenmesuees 17, 18

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)............006 17, 18

Ginsberg v. New York, 390 U.S. 629 (1968) ..........cccccceeeeees 4,5,14

Gooding v. Wilson, 405 U.S. 518 (1972) ......ccccccccesseeeseeeseeeseeeeeees 16

Hamling v. United States, 418 U.S. 87 (1974) ............ 7, 8,9, 10, 11

ee ee TIE. caneinsesunenesnnnoonoqnnsones 16

Jenkins v. Georgia, 418 U.S. 153 (1974) ..........0.. | ; siieinetaniennens 9.11

Kovaes v. Coaper, S66 U.S. 77 (1998) ..0000.verseescesessvescevscesssevessecees 16

Miller v. California, 413 U.S. 15 (1973) ....cccccccceccceeseeeeeeees 4, passim

Mishkin v. New York, 383 U.S. 502 (1966) ..........:ccccccceeeesseseneeeneees 7

Redrup v. New York, 386 U.S. 767 (1967) .........ccccscccceseesserereeens 17

Reno v. ACLU, 521 U.S. 844 (1997) ........:.sccscsseesseseeeeeeees 4,12, 13

Rosenfeld v. New Jersey, 408 U.S. 901 (1972).........cccccccceeeeseeeeeees 15

il

Roth v. United States, 354 U.S. 476 (1957)........c.ccccccesceeceeseneeereveees 6

Smith v. United States, 431 U.S. 291 (1977) .....cccccccccccececeeceeee 10, 11

United States v. Thomas, 74 F 3d 701 (6" Cir. 1996), cert. denied,

gS SAS ewer Toe Wien eee. 12, 13

Young v. American Mini Theatres, 427 U.S. 50 (1976) ...........0..- 18

STATUTES

CHILD ONLINE PROTECTION ACT, 47 U.S.C. 231(e)(6)..... 4, passim

COMMUNICATIONS DECENCY ACT, 47 U.S.C. 223(aX(1 (BYii).... 13

I a 17

OTHER AUTHORITIES

FREE SPEECH IN THE UNITED STATES, by Chafee, Zechariah......... 14

iii

INTEREST OF AMICI CURIAE

Morality in Media, Inc., the Family Research Council

and the Ethics & Religious Liberty Commission of the

Southern Baptists Convention as amici curiae,' file this brief

in support of the Petitioner in this case, which is before this

Honorable Court on the merits under the provisions of Rule

37. The written consents of the parties were requested and

all parties have consented in writing to the filing of this brief.

Copies of the written consents are being filed concurrently

with this brief.

Morality in Media is a New York, not-for-profit,

interfaith, charitable corporation, organized in 1968 for the

purpose of combating the distribution of obscene material in

the United States and upholding decency standards in the

media. Now national in scope, this organization has affiliates

and chapters in various states. Its Board of Directors and

Advisory Board are composed of prominent businessmen,

clergy, and civic leaders. The Founder and President of MIM

(until his death in 1985) was Reverend Morton A. Hill, S.J.

In 1968, Father Hill was appointed to the President's

Commission on Obscenity and Pornography. He and Dr.

Winfrey C. Link produced the "Hill-Link Minority Report of

the Presidential Commission on Obscenity and

Pornography,” which was cited by this Honorable Court in

Kaplan v. California, 413 U.S. 115, 120 n.4 (1973) and in

' This Brief Amici Curiae was authored in whole by Counsel of

Record Paul J. McGeady and Co-Counsel Robin S. Whitehead of

Morality in Media, Inc., with contribution by Co-Counsel Janet M.

LaRue of the Family Research Council and Co-Counsel Shannon

Royce of the Ethics & Religious Liberty Commission of the

Southern Baptists Convention. No part of the brief was authored

by any attorney for a party. No person or entity other than these

amici made any monetary contribution to the preparation or

submission of this brief. Rule 37 (6).

Paris Adult Theatre I v. Slaton, 413 U.S. 49, 58 notes 7 and 8

(1973).

Morality in Media has an interest in this case because

it specializes in providing assistance on issues related to the

laws of obscenity, child pornography, broadcast indecency,

and the display and dissemination of materials that are

harmful to minors. Morality in Media and the American —

Catholic Lawyers Association filed a brief in the Third

Circuit below as amici curiae in support of the government's

position.

Morality in Media has filed friend of the court briefs

in this Court involving First Amendment issues, including:

FCC v. Pacifica Foundation, 438 U.S. 726 (1978); New York

v. Ferber, 458 U.S. 747 (1982); Brockett v. Spokane Arcades,

Inc., 472 U.S. 491 (1985); Fort Wayne Books, Inc. v.

Indiana, 489 U.S. 46 (1989); Sable Communications v. FCC,

492 U.S. 115 (1989); Denver Area Consortium v. FCC, 518

U.S. 727 (1996); Reno v. ACLU, 521 U.S. 844 (1997);

National Endowment for the Arts v. Finley, 524 U.S. 569

(1998); City of Erie v. Pap's A.M., 529 U.S. 277 (2000);

United States v. Playboy, 529 U.S. 803 (2000); City News

and Novelty, Inc. v. City of Waukesha, 121 S. Ct. 743 (2001);

and Ashcroft v. Free Speech Coalition, No. 00-795 (2001);

City of Los Angeles v. Alameda Books, Inc. and Highland

Books, Inc., No. 00-799 (2001).

Family Research Council, Inc. (FRC) is a non-profit,

research, and educational organization dedicated to

articulating and advancing a family-centered philosophy of

public life. In addition to providing policy research and

analysis for the legislative, executive, and judicial branches

of the federal government, FRC seeks to inform the news

media, academic community, business leaders, and general

public about family and religious liberty issues that affect the

nation. FRC is committed to ensuring that the legacy of

family, faith and freedom is not forgotten in America’ FRC

endorses parental involvement and parental choice in

education and works to reduce the federal government’s

intrusion into local schools, including private and religious

schools. FRC has participated in numerous amicus curiae

briefs in the United States Supreme Court, lower federal

courts, and state courts. Kenneth L. Connor is the President

and Janet M. LaRue is the Senior Director of Legal Studies.

The Ethics & Religious Liberty Commission has an

interest in this case as it is the moral concern and public

policy agency for the Southern Baptist Convention, the

nation's largest Protestant denomination, with 16 million

members in over 41,000 autonomous local churches. The-

Commission is charged with addressing public policies

= the sanctity of human life, morality and religious

iberty.

Amici are filing this brief in support of the Petitioner

because we believe our brief contains relevant matter and

alternative arguments that may not be presented to the Court

by the parties. :

—————

SUMMARY OF ARGUMENT

The Third Circuit's holding that the Child Online

Protection Act's ("COPA") definition of "harmful to minors"

requires a geographic standard as the measure of what

constitutes the community signifies a misunderstanding of

the concept of “contemporary community standards.”

If left uncorrected by this Court, _ this

misunderstanding could result in the invalidation of the

obscenity laws (at least in the Third Circuit) as applied to the

World Wide Web. It also conflicts with the decision in Reno

v. ACLU, 521 U.S. 844 at 878 n.44 (1997), where this Court

specifically recognized that federal obscenity laws apply to

the Internet stating that "Transmitting obscenity and child

pornography, whether via the Internet or other means, is

already illegal under federal law for both adults and

juveniles."

Further, amici intend to demonstrate that there are

narrowly limited classes of speech that are unprotected by the

First Amendment, one of which is "nuisance speech." Amici

submit that material "harmful to minors" transmitted by

means of the Internet, intrudes into the privacy of the home

and is readily accessible to children, is a form of "nuisance,"

and as such need not meet the community standards prongs

of Miller or Ginsberg.

ARGUMENT

I. THE THIRD CIRCUIT ERRED IN ITS HOLDING THAT THE

"HARMFUL TO MINORS" DEFINITION REQUIRES A

"GEOGRAPHIC" STANDARD AS THE MEASURE OF WHAT

CONSTITUTES THE "COMMUNITY STANDARD"

COPA's definition of material that is “harmful to

minors" combines both the Miller v. California test for what

is obscene for adults, as well as the definition of what is

obscene for minors, found in Ginsberg v. New York.’

The Court of Appeals’ determination that COPA

"imposes an overreaching burden and restriction on

constitutionally protected speech," ACLU v. Reno, 217 F.3d

162, 176 (3 Cir. 2000), was based on their incorrect First

Amendment analysis of "COPA's reliance on ‘contemporary

community standards’ in the context of the electronic

medium of the Web to identify material that is harmful to

minors." /d. at 173. The Court reasoned that:

Because material posted on the Web is

accessible by all Internet users worldwide, and

because current technology does not permit a

Web publisher to restrict access to its site based

on the geographic locale of each particular

Internet user, COPA essentially requires that

every Web publisher subject to the statute abide

by the most restrictive and conservative state's

community standards in order to avoid criminal

liability. 217 F.3d at 166.

* Compare 47 U.S.C. 231(e)(6) with Miller, 413 U.S. 15, 24 (1973)

and Ginsberg, 390 U.S. 629, 632-633 (1968).

This rationale signifies a misunderstanding of the

concept of “contemporary community standards.” In order to

understand the concept of “contemporary community

standards." it is vital to look at the seminal case of Miller v.

California, 413 U.S. 15 (1973), where both the definition of,

and the test for, obscenity are found as currently applied in

federal and state courts throughout the United States.”

The definition of obscenity is the essence of what will

be deemed to be obscene. It does not contain any element of

community standards. As stated in Miller at 413 U.S. at 24

the definition reads:

Works which, taken as a whole appeal to the

prurient interest in sex, which portray sexual

conduct in a patently offensive way, and which

taken as a whole, do not have serious literary,

artistic, political or scientific value.

Miller then provides the test for determining whether

something is obscene:

> Amici note that this Court in Roth v. United States, 354 U.S. 476

(1957), first approved the concept of "contemporary community

standards" to assist in obscenity determinations. The test at that

time was "whether to the average person, applying contemporary

community standards, the dominant theme of the material taken as

a whole appeals to prurient interest." /d. at 489. More significant

than the actual test in Roth (since the current test is that found in

Miller) is the trial court's jury instruction on the community

standard (with which the majority in Roth agreed):

"[Y Jou determine its impact upon the average person

in the community... You may ask yourselves does it

offend the common conscience of the community by

present-day standards." /d. at 490.

a

A ae

———_—_ —_—— “=

The basic guidelines for the trier of fact must

be: (a) whether "the average person, applying

contemporary community standards" would find

that the work, taken as a whole, appeals to the

prurient interest... (b) whether the work depicts

or describes, in a patently offensive way, sexual

conduct specifically defined by the applicable

state law; and (c) whether the work, taken as a~

whole, lacks serious literary, artistic, political,

or scientific value. Jd. [Emphasis added. ]*

The Miller Court goes on to explain the concepts of

“average person” and “contemporary community standards”

as used in the test for obscenity (and not its definition) at 423

U.S. at 33-34:

As the Court made clear in Mishkin v. New.

York, 383 U.S., at 508-509, 86 S.Ct., at 963, the

primary concern with requiring a jury to apply

the standard of "the average person, applying

contemporary community standards” is to be

certain that, so far as material is not aimed at a

deviant group, it will be judged by its impact on

an average person, rather than a particularly

susceptible or sensitive person--or indeed a

totally insensitive one.

This Court’s concern in establishing this test was to

insure that the juror be directed not to apply his or her own

* Amici point out the distinction between the definition and the test

of obscenity to show that the concept of "community standards" is

not an element of the definition and therefore, amici submit that a

person could arrive at the concept of "obscenity" as an abstraction

even if he or she were to prescind from the community standards

concept or for example used "reasonableness" in place of the

community standards test. See Hamling v. United States, infra.

individual standard, but to seek the mean of the community

for the obvious purpose of fairness to the defendant. The

Supreme Court was not concerned with which particular

“community standard” would be applied, as long as the jurors

are instructed not to use their own personal standard, but

instead to find a mean.

In Hamling v. United States, 418 U.S. 87 (1974), this

Court discussed the concept of “contemporary community

standard” and interpreted Miller to hold that no precise

geographical area is a constitutional requirement for

establishing the relevant community. The Court stated in

Hamling at 104-105:

Miller rejected the view that the First and

Fourteenth Amendments require that the

proscription of obscenity be based on uniform

nationwide standards of what is obscene... But

in so doing the Court did not require as a

constitutional matter the substitution of some

smaller geographical area into the same sort of

formula; the test was stated in terms of the

understanding of "the average person. applying

contemporary community standards." /Jd., at 24.

93 S.Ct., at 2615... A juror is entitled to draw

on_ his own knowledge of the views of the

average n_ in the community or vicinage

from which he comes for making the required

determination, just as he is entitled to draw on

iS wledge of the itie fia

"reasonable" in other areas of the law...

ing in Miller that California could

constitutionally proscribe obscenity in terms of

a_ "statewide" standard did not mean that any

such precise geographic area is required as a

matter of constitutional law. [Emphasis added. }

Amici submit that it is impossible to read Hamling

and conclude that the test for obscenity requires a geographic

standard. Since the test under COPA, to determine whether

material is harmful to minors, viz. obscene for minors,

utilizes the same concept of community standards, as does

the test for obscenity, it follows that COPA cannot be

interpreted to require a geographic standard. The Third

Circuit apparently so believed and is therefore in error.

In Jenkins v. Georgia, 418 U.S. 153 (1974), the same

day that the Supreme Court decided Hamling, the Court

further explained the "contemporary community standard" as

set forth in Miller, when it reversed the trial court's

conviction of defendant fo: the distribution of obscene

material. The Court stated at 157:

We agree with the Supreme Court of Georgia's

implicit ruling that the Constitution does not

require that juries be instructed in state

obscenity cases to apply the standards of a

hypothetical statewide community. Miller

approved the use of such instructions; it did not

mandate their use. What Miller makes clear is

that state juries need not be instructed to apply

“national standards." We also agree with the

Supreme Court of Georgia's implicit approval of

— the trial court's instructions directing jurors to

apply ___"community _standards"__ without

specifying what "community." Miller held that

it_was constitutionally permissible to permit

juries _to rely on the understanding of the

community from which they cay.2 as to

contemporary community standards. and the

States have considerable latitude ir, framing

Statutes under this element of the Méiller

decision. A State may choose to define an

obscenity offense in terms of "contemporary

community _ stan a defined in Méiller

without further specification, as was done here,

or it may choose to define the standards in more

recise hic terms, as was ne_ by

California in Miller. [Emphasis added. ]

In Smith v. United States, 431 U.S. 291 (1977), a case

involving a conviction under the federal statute that

proscribes the mailing of obscene materials, the Supreme

Court was faced with deciding:

Whether the jury's discretion to determine what

appeals to the prurient interest and what is

patently offensive is circumscribed in any way

by a state statute such as s.725 of the lowa

Code. Put another way, we must decide whether

the jury is entitled to rely on its own knowledge

of community standards, or whether a state

legislature (or a smaller legislative body) may

declare what the community standards shall

be.... Jd. at 302.

Citing Hamling, the Smith Court reiterated its analogy

between the function of "contemporary community

standards" in obscenity cases, and "reasonableness" in other

cases and stated at 302:

A juror is entitled to draw on his own

knowledge of the views of the average person in

the community or vicinage from which he

comes for making the required determination,

just as he is entitled to draw on his knowledge

of the propensities of a "reasonable" person in

other areas of the law. Hamling, 418 U.S. at

104-105.

10

Smith further clarified that community standards are

not an element of the obscenity crime, but with respect to the

first two elements of the obscenity test, are to be used as a

measure or reference point regarding what is accepted in the

community from where the jury is drawn. The Court stated:

Obviously, a state legislature would not be able

to define contemporary community standards in

a vacuum. Rather, community standards simply

provide the measure against which the jury

decides questions of appeal to prurient interest

and patent offensiveness. Jd.

Amici submit that "community standards" are

required to be applied by the trier of fact in accordance with

his or her own understanding of its meaning~in his or her

community. The Supreme Court has clearly held that the

measuring by the trier of fact of these two elements against

contemporary community standards does not mean that their

discretion goes unchecked.”

* See Hamling, 418 U.S. at 114 and Jenkins, 418 U.S. at 160-161.

where the Court emphasized that the second part of the Miller test

relating to “patent offensiveness” contains a _ substantive

component, in that the kinds of conduct that a jury would be

permitted to label as “patently offensive,” are the “hard core” types

of conduct suggested by the examples given in Miller.

Il. IF THE COURT OF APPEALS HOLDING THAT

"COMMUNITY STANDARDS" ARE TO BE DETERMINED

ONLY ON A GEOGRAPHIC BASIS AS APPLIED TO THE

WoRLD WIDE WEB IS AFFIRMED, THEN OBSCENITY

LAWS RELATING TO THE WORLD WIDE WEB WOULD

BE INVALID

If the Third Circuit's determination that no geographic

standards can be applied to material deemed obscene for

minors on the World Wide Web is affirmed, then the

obscenity laws relating to the Web would be presumptively

invalid, not just the "harmful to minors" language of COPA.

The court below stated at 217 F.3d 162, 180:

We remain satisfied that Miller's "contemporary

community standards" test continues to be a

useful and viable tool in contexts other than the

Internet and the Web_ under present

technology... Miller, however, has no

applicability to the Internet and the Web, where

Web publishers are currently without the ability

to control the geographic scope of the recipients

of their communications.

This finding by the court below directly conflicts with

Supreme Court prior obscenity decisions,’ including Reno v.

° It is apparent that the Third Circuit is throwing out the Miller

standard as relating to the Web, not only from the above language,

but also because "obscene" material was at issue along with the

language of “harmful to minors.”

” United States v. Thomas, 74 F.3d 701 (6" Cir. 1996), cert

denied, 117 S.Ct. 74 (1996), addressed the issue of community

standards relative to the Internet and found that obscenity

violations over the Internet could be prosecuted. Although the

Court limited its holding to the specific facts of the case, i.e.,

where an operator of a bulletin board service knew where its

12

ACLU, 521 U.S. 844 at 878 n.44 (1997), where the Court

unanimously upheld, as being constitutional on its face,

Section 223(a)(1)(B)(ii) of the Communications Decency

Act, which prohibits the transmission of “obscene” messages

to any recipient the sender knows is under 18 years of age.

In doing so, this Court specifically recognized that federal

obscenity laws apply to the Internet when it stated:

Transmitting obscenity and child pornography,

whether via the Internet or other means, is

already illegal under federal law for both adults

and juveniles.

| The Third Circuit Court's belief, evidenced by its

holding that obscenity laws must be geographic, caused it to

incorrectly "find" that harmful to minors laws must also be

geographic. As such, that Court misapplied the concept of

community standards and came to a result which contradicts

this Court's prior approval of the obscenity test as applied to

the Internet. This Court should now correct the Third

Circuit's error by properly finding that COPA's definition of

harmful to minors is constitutional, since it uses a valid test.

This Court has already sanctioned the applicability of

obscenity laws for the Internet.

members were located through it’s membership procedures, the

Court properly applied the "contemporary community standard"

measure of the test for obscenity found in Miller.

13

Ill. "HARMFUL TO MINORS" MATERIAL COMMUNICATED

BY MEANS OF THE INTERNET INTRUDES INTO THE

HOME AND IS READILY ACCESSIBLE TO CHILDREN. AS

SUCH, IT CAN BE CONSIDERED A FORM OF "NUISANCE

SPEECH" THAT NEED NOT MEET THE “COMMUNITY

STANDARDS" PRONGS OF MILLER OR GINSBERG

There are narrowly limited classes of speech that are

unprotected by the First Amendment. One such class is

"nuisance speech." Amici submit that material that is

"harmful to minors," which intrudes into the privacy of the

home, and is readily accessible to children by way of the

Internet, is a form of “nuisance.”

The concept of "nuisance speech," as a class of

speech unprotected by the First Amendment, was first

"alluded to" by this Court in Chaplinsky v. New Hampshire,

315 U.S. 568 (1942), where the Court stated at 571-572: °

* Amici use the phrase “alluded to” because the below quoted

material from Chaplinsky, while not specifically mentioning

nuisance speech, twice cites to Free Speech in the United States,

by Zechariah Chafee, Jr. (1941), which does mention nuisance

speech at pp. 149-150:

But the law also punishes a few classes of words like

obscenity, profanity... because the very utterance of

such words is considered to inflict a present injury

upon listeners, readers... [P]roperly limited they fall

[Pjrofanity, indecent talk and pictures, which do not

form an essential part of any exposition of ideas,

have a very slight social value as a step toward truth,

which is clearly outweighed by the social interests in

order, morality, the training of the young and the

peace of mind of those who hear or see... The man

who swears in a street car is as much of a nuisance

as the man who smokes there. [Emphasis added. ]

14

There are certain, well-defined and narrowly

limited classes of speech, the prevention and

punishment of which have never been thought

to raise any Constitutional problem. These

include the lewd and obscene... those which by

their very utterance inflict injury or tend to

incite an immediate breach of the peace...

[SJuch utterances are no essential part of any

exposition of ideas, and are of such slight social

value as a step to truth that any benefit that may

be derived from them is clearly outweighed by

the social interest in order and morality.

| The nuisance rationale was also applied by the three

dissenting Justices in Rosenfeld v. New Jersey, 408 U.S. 901

(1972). Justice Powell, with whom the Chief Justice and

Justice Blackmun joined, wrote at 408 U.S. 905-906:

But the exception to the First Amendment

protection in Chaplinsky is not limited to words

whose mere utterance entails a high probability

of an outbreak of physical violence. It also

extends to the willful use of scurrilous language

calculated to offend the sensibilities of an

unwilling audience... [A] verbal assault on an

i vo 1V

The

Model Penal Code... also recognizes a

distinction between utterances which may

threaten physical violence and those which may

amount to a public nuisance, recognizing that

neither category falls within...First Amendment

[protection]. [Emphasis added. ]

15

In Breard v. Alexandria, 341 U.S. 622 (1951) and

Kovacs v. Cooper, 366 U.S. 77 (1949), this Court upheld

nuisance ordinances aimed at means of communication that

intrude into the privacy of the home. As the Court in Kovacs

stated at 366 U.S. at 88-89:

The preferred position of freedom of speech in a

society that cherishes liberty for all does not

require legislators to be insensible to claims by

citizens for comfort and convenience. That more

people may be more easily and cheaply reached

open. [Emphasis added. ]

In Hess v. Indiana, 414 U.S. 105, 107-108 (1973),

this Court again identified speech that amounts to a public

nuisance as being outside the protection of the First

Amendment:

It hardly needs repeating that "the constitutional

guarantees of freedom of speech forbid the

States to punish the use of words or language

not within ‘narrowly limited classes of speech."

Gooding v. Wilson, supra, at 521-522... Hess’

words could be punished as obscene... By the

same token, any suggestion that Hess’ speech

amounted to "fighting words," Chaplinsky v.

New Hampshire, 315 U.S. 568 (1942), could not

withstand scrutiny... In addition, there was no

evidence to indicate that Hess' speech amounted

were being invaded. [Emphasis added. ]

16

See also Redrup v. New York, 386 U.S. 767, 769

(1967), (recognizing a need for government protection

against an "assault upon individual privacy.")

In FCC v. Pacifica Foundation, 438 U.S. 726 (1978)

this Court affirmed the FCC ruling that found the monologue,

"Filthy Words," as broadcast, to be indecent and prohibited

by 18 U.S.C. 1464. In so doing, the Court observed that the

ruling "rested entirely on a nuisance rationale under which

context is all-important." Jd. at 750.

In Bethel School District No. 403 v. Fraser, 478 US.

675 (1986), this Court held that a student could be penalized

for making an indecent speech before a school assembly,

attended by both students and faculty. Justice Stevens

(dissenting on due process grounds) noted at 696:

[A] nuisance may be merely a right thing in the

wrong place -- like a pig in the parlor instead of

the barnyard... Vulgar language, like vulgar

animals, may be acceptable in some contexts.

and intolerable in others... It seems... obvious

that [the] speech would be inappropriate in

certain... settings.

Amici submit that material “harmful to minors"

which, by means of the Internet, intrudes into the privacy of

the home and is readily accessible to children is also

“nuisance speech" which is unprotected by the First

Amendment and which Congress can regulate, as it has

chosen to do by enacting COPA to restrict children's access

to material that is harmful as to them and which is readily

available on the Internet.”

* See Denver Area Educational Telecommunications Consortium v.

FCC, 518 U.S. 727 (1996), where Justice Breyer, writing for the

Court, is critical of the absolutist approach of Justices Kennedy

17

and Thomas relative to regulation of leased access channels and

says at 740:

Both categorical approaches suffer from the same

flaws: They import law developed in very different

contexts into a new and changing environment, and

they lack the flexibility necessary to allow

government to respond to very serious practical

problems without sacrificing the free exchange of

ideas the First Amendment is designed to protect.

The history of the Court’s First Amendment

jurisprudence, however, is one of continual

development, as the Constitution’s general

command... has been applied to new circumstances

requiring different applications of prior principles

and precedents... our cases have not left Congress or

the States powerless to address the most serious

problems (quoting Chaplinsky v. New Hampshire,

315 U.S. 568 (1942); Young v. American Mini

Theatres, 427 U.S. 50 (1976): and FCC v. Pacifica,

438 U.S. 726 (1978)).

The Court continues at 740-743:

Over the years, this Court has restated and refined

these basic First Amendment principles, adopting

them more particularly to the balance of competing

interests and the special circumstances of each field

of application... This tradition teaches that the First

Amendment embodies an overarching commitment

to protect speech from government regulation

through close judicial scrutiny, but without imposing

judicial formulas so rigid that they become a

straightjacket that disables government from

responding to serious problems. This Court... has

consistently held that government may directly

regulate speech to address extraordinary problems,

where its regulations are appropriately tailored to

resolve those problems without imposing an

unnecessarily great restriction on speech.

to ew

" CONCLUSION

For all of the aforementioned reasons, your amici

pray that this Honorable Court reverse the judgment of the ~

court below or in the alternative, remand for additional

consideration and study.

Respectfully submitted,

Paul J. McGeady (

Counsel of Record

“Bu S. erhQ

Robin S. Whitehead

Co-Counsel

for Amici Curiae

19