Amicus Curiae Brief — Ashcroft v. American Civil Liberties Union

Supreme Court, U.S

FILED

NOV 2 6 2003

_

?

OFFICE OF THE CLERK |

No. 03-218

IN THE

Supreme Court of the United States

JOHN ASHCROFT, ATTORNEY GENERAL

OF THE UNITED STATES,

PETITIONER.

AMERICAN CIVIL LIBERTIES UNION, ET AL..,

RESPONDENTS.

On Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF OF FOCUS ON THE FAMILY AND THE

FAMILY RESEARCH COUNCIL

AS AMICI CURIAE, SUPPORTING PETITIONER

WILLIAM WAGNER

Counsel of Record

STEVE REED

35 N. Lake Ave. PHILIP J. PRYGOSKI

Pasadena, CA 9110] COOLEY LAW SCHOOL

(626)449-4521 300 South Capitel

Lansing, MI 48933

PAT TRUEMAN (517) 371-5140

801 G. Street NW

Washington D.C. 2001

(202)393-2100

——— ——

TABLE OF CONTENTS

FE nec a a aE II

Fg EC a ee CT l

gE TER Ten ee 3

gf ESR ae en 3

RESETS RSS AR Le Rte eo OP a 5

THE COURT OF APPEALS COMMITTED CLEAR ERROR IN

APPLYING STRICT SCRUTINY TO THE CHILD ONLINE

Ei Gh a

A. The “Harmful to Minors” Material Proscribed in

COPA is Commercial Child Obscenity. As such, it

Deserves, and Therefore Receives, NO Protection

under the First Amendment to the United States

a SE Te ea 5

B. COPA’S Provisions are Rationally Related to

Legitimate Government Interests ..................... 25

C. Judged in Relation to the COPA’s Plainly

Legitimate Sweep, COPA is not Substantially

RENNES ESS Oe ne nN 26

EE ee ROE LET 28

II

TABLE OF AUTHORITIES

Cases:

ACLU v. Ashcroft, 322 F.3d 240 (3" Cir.

BOOS). «0 000ccccsesecsecesensesedensaenieiee 4,5,7

ACLU v. Reno, 31 F.Supp. 2d 473 (E.D. Pa. 1999)... 27

Ashcroft v. A.C.L.U., 535 U.S. 564 (2002)........ 7,26,27

Boston Beer Co. v. Massachusetts, 97 U.S. 25(1878)..10

Broadrick v. Oklahoma, 413 U.S. 601 (1973).......... 26

Cohen v. California, 403 U.S. 15 (1971) ............05. 17

Collin v. Smith, 578 F.2d 1197 (7" Cir.), cert. denied,

439 U.S. DIG CIDTE) .....00000cccceccevccnnnnneneeneenee 13

FCC v Pacifica Foundation, 438 U.S: 726 (1978)..14,17

Ginsberg v. State of New York, 390 U.S. 629

CDEP occoscencecscansneee 7,9,14-16,18,19,24,25,27

Miller v. California, 413 U.S. 15

Li : Sr 7, 12-14,18,19,23-25,27

New York v. Ferber, 458 U.S. 747

1 7: rr 14,22,23,26,28,29

Paris Adult Theater I v. Slaton, 413 U.S. 49

Ch LL) Serr 7,8,11,19,25,28,29

Poe v. Ullman, 367 U.S. 497 (1961) ..........ccccc eeu eee 9

Pope v Illinois, 481 U.S. 497 (1987)............. 19,24, 27

Reno v ACLU, 521 U.S. 844 (1997)...........00.00.. 15, 26

Roth v. United States, 354 U.S. 476 (1957)........ 7,11,23

Schenck v. U.S., 249 U.S.47 (1919)........ ccc cceceeees 11

Smith v. United States, 431 U.S. 291 (1977)..18,19,24,27

Constitution and statutes:

U.S. Conde: Amends. I ......0ccccccesccsnusnnuennne 7

Child Online Protection Act of 1998 (COPA),

47 U.S.C. § 231 .ccccccccccccescnnsunneeaneeen 3, 5-7,18

— ee + -

Il

Miscellaneous:

MODEL PENAL CODE §207.10 (2) (Tentative

hana icetasonconsccoscesece 12

Committee Report on COPA,

H.R. Rep. No. 105-775 (1998)..............060. 19-21, 27

Hearings on Legislative Proposals to Protect Children

from Inappropriate Materials on the Internet: Before the

Subcomm. on Telecommunications, Trade, and

Consumer Protection of the House Comm. on

Commerce, 105th Cong. 9 (1998) [Hearings] ....... 9,21

S. Rep. No. 106-141 (1999) .......... cece cc ece eee eee ees 21

Henkin, Morals and the Constitution: The Sin of

Obscenity, 63 Colum. L.R. 391, (1963)...............08 10

l

INTEREST OF AMICI CURIAE

This amicus curiae brief is filed on behalf of Focus

on the Family and the Family Research Council.’

Focus on the Family is a Christian, non-profit

organization committed to strengthening the emotional,

psychological, and spiritual health of children and their

families in the United States and throughout the world.

Focus on the Family’s Founder and Chairman, Dr.

James Dobson, a distinguished child psychologist, served as

a Commissioner on the Attorney General's Commission on

Pornography in 1985-86 and is the author of scores of books,

pamphlets, and papers on child development, education,

marriage, and society.

Focus on the Family and Dr. Dobson have produced

two major videos, “A Winnable War” and “Fatal Addiction:

Ted Bundy’s Final Interview”, which directly discuss the

harms of pornography to children, men, women, and families

in America, as well as Dr. Dobson’s interview with Ted

Bundy and his book Pornography: Addictive, Progressive

and Deadly. Tom Minnery of Focus was compiler and editor

of the book Pornography: A Human Tragedy, chronicling

analyses and commentary on the testimony and findings of

the Attorney General’s Commission on Pornography. In

addition, Focus continues to produce resource materials on

these issues, such as “An Overview of Online Pornography:

' In accordance with Rule 37(6), amici certify that this brief was

authored entirely by Counsel of Record for amici and that no part

of the brief was authored by any attorney for a party. The Alliance

Defense Fund provided a monetary contribution to the preparation

or submission of this brief; no other person or entity other than

amici curiae or their counsel provided a monetary contribution to

the preparation or submission of this brief.

2

The Problems, a Legal Review, and Activist Organizations”,

“The Power of the Picture’, “When Sex Becomes An

Addiction”, “An Affair of the Mind”, and “Toxic Porn.”

Worldwide, countless concerned citizens, public officials,

professionals, and parents have seen and read these videos

and books. Millions of people hear Focus on the Family’s

daily radio broadcasts dealing with family concerns and

interests on over 2,000 outlets in North America. Its

monthly magazine has a circulation of nearly two million.

Focus on the Family regularly communicates and counsels

with victims and families who have children devastated by

pornography, molestation, and abuse. See: www.family.org.

Family Research Council is a non-profit, research

and educational organization dedicated to articulating and

advancing a family-centered philosophy of public life. FRC

is a voice for the pro-family movement in Washington, D.C..,

and provides policy analysis, legislative assistance, and

research for pro-family organizations. It also seeks to

educate legislators on issues that affect American families.

In addition to providing policy research and analysis

for the legislative, executive, and judicial branches of the

federal government, FRC works to inform the news media,

the academic community, business leaders, and the general

public about family issues that affect the nation. Its research,

publications, and films on the impact of pornography have

been distributed to over 400,000 scholars, students,

organizations, and citizens. FRC’s legal and public policy

experts are continually sought out by members of Congress

and State legislators for assistance and advice on the unique

relationship between parents and their children.

FRC has participated in numerous amicus curiae

briefs in the United States Supreme Court and federal courts,

including those involving the regulation and harmful effects

ee

3

of pornography, obscenity, and child pornography. FRC

publishes and disseminates resource materials, legal

memoranda, and public policy studies on pro-family issues.

These publications include discussions on the problems and

legal controversies surrounding pomography. See:

www .frc.org.

Focus on the Family and Family Research Council

work to preserve and protect the family and have particular

knowledge about the social and legal impact of pornography

that will be helpful to the Court in this case.

CONSENT TO FILE BRIEF

Petitioner and Respondents, through their counsel of

record, consented to the filing of this Brief Amici Curiae in

support of Petitioner. Their letters of consent are on file with

the Clerk of the Court.

SUMMARY OF THE ARGUMENT

To protect our nation’s children, and to preserve a

decent society, Congress may, consistent with the First

Amendment, restrict commercialized child obscenity on the

Internet that is “harmful to minors.” Congress may do so,

regardless of whether such material is deemed obscene to

adults. In this regard, amici contend that the “harmful to

minors” material restricted by the Child Online Protection

Act, 47 U.S.C. § 231 (1998), is a category of material wholly

outside the protection of the First Amendment.

Thus, the Court of Appeals committed clear error in

applying strict scrutiny to COPA. The court below

erroneously assumed that COPA’s provisions constituted

4

content-based regulation of expression protected by the First

Amendment. ACLU v. Ashcroft, 322 F.3d 240, 247, 251 (3rd

Cir. 2003). Acting on this incorrect assumption, the Court of

Appeals treated COPA’s provisions as presumptively invalid

and erroneously subjected the statute to strict scrutiny. /d.

Before deciding the constitutionality of COPA, amici

request this Court to determine whether the commercialized

“child ob: senity”, restricted as “harmful to minors” by

COPA, deserves protection under the First Amendment.

Good and serious reasons exist for this Court to hold that

such material is unprotected by the First Amendment. These

reasons include:

1) The Government has an interest in

maintaining a decent society through

restrictions on commercialized obscenity;

2) The Government has an interest in

protecting our children from exploitation and

exposure to commercialized obscene

materials;

3) The commercialized child obscenity,

restricted as “harmful to minors” in COPA. is

in fact, dangerously harmful to our children

and their future;

4) Permitting a commercial onslaught of

child obscenity to our children lacks any

value worthy of protectic’:; and

5) Recognizing and classifying commercial

child obscenity, as a category of material

unprotected by the First Amendment is

consistent with this Court’s prior decisions.

COPA is rationally related to the government's

interest in protecting our nation’s children from

5

commercialized child obscenity, and in preserving a national

right to a decent society.

Amici, therefore, urge this Court to reverse the Court

of Appeals and uphold the constitutionality of the COPA as

passed by Congress.

ARGUMENT

THE COURT OF APPEALS COMMITTED CLEAR ERROR

IN APPLYING STRICT SCRUTINY TO THE

CHILD ONLINE PROTECTION ACT

The Court of Appeals erroneously assumed that

COPA’s provisions constituted content-based regulation of

expression protected by the First Amendment. ACLU v.

Ashcroft, 322 F.3d 240, 247, 251 (3rd Cir. 2003) Acting on

this incorrect assumption, the Court of Appeals treated

COPA’s provisions as presumptively invalid and erroneously

subjected the statute to strict scrutiny. /d. Because COPA’s

provisions do not restrict protected speech under the First

Amendment, this Court should hold COPA’s provisions

constitutional if its provisions are rationally related to a

legitimate government interest. (See discussion infra in

subsection A and subsection B of this brief).

A. THE “HARMFUL TO MINORS” MATERIAL PROSCRIBED IN

COPA IS COMMERCIAL CHILD OBSCENITY. AS SUCH, IT

DESERVES, AND THEREFORE RECEIVES, NO PROTECTION

UNDER THE FIRST AMENDMENT TO THE. UNITED STATES

CONSTITUTION

As passed by Congress, COPA provides that:

Whoever knowingly and with knowledge of the

character of the material, in interstate or foreign

6

commerce by means of the World Wide Web, makes

any communication for commercial purposes that is

available to any minor and that includes any material

that is harmful to minors shall be fined not more than

$50,000, imprisoned not more than 6 months, or

both. 47 U.S.C. § 231 (a).

Within the statute, Congress precisely defined “material that

is harmful to minors” --

The term “material that is harmful to minors” means

any communication, picture, image, graphic image

file, article, recording, writing, or other matter of any

kind that is obscene or that--

(A) the average person, applying contemporary

community standards, would find, taking the material

as a whole and with respect to minors, is designed to

appeal to, or is designed to pander to, the prurient

interest;

(B) depicts, describes, or represents, in a manner

patently offensive with respect to minors, an actual or

simulated sexual act or sexual contact, an actual or

simulated normal or perverted sexual act, or a lewd

exhibition of the genitals or post-pubescent female

breast; and

(C) taken as a whole, lacks serious literary, artistic,

political, or scientific value for minors. 47 U.S.C. §

231(e)(6).

Before deciding whether COPA is constitutional, this

Court should first inquire whether the material restricted by

the statute is unprotected by the First Amendment.

—

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The First Amendment to the United States

Constitution provides that “Congress shall make no law . . .

abridging the freedom of speech.” U.S. Const. Amend. I.

Historically, this Court has never included within the

protection of the First Amendment, material of the kind

proscribed by COPA. See, e.g., Roth v. United States, 354

U.S. 476, 482-485 (1957); Paris Adult Theater I v. Slaton,

413 US. 49, 54 (1973); Miller v. California, 413 U.S. 15, 23

(1972); Ginsberg v. State of New York, 390 U.S. 629, 635

(1968); see also, Ashcroft v. A.C.L.U., 535 U.S. 564, 574

(2002).

Amici request inis Court to recognize that the

“harmful to minors” material restricted by COPA is a

category of material wholly outside the protection of the

First Amendment. No party contests this point with regard to

COPA’s restriction on traditional adult obscenity, as stated in

the first part of the definition providing that material is

“harmful to minors” if it is “obscene.” See ACLU v. Ashcroft,

322 F.3d at 246 n.6.

As in cases involving adult obscenity and child

pornography, amici believe that Congress is also entitled to

restrict commercialized child obscenity on the Internet that is

“harmful to minors.” Amici request this Court to recognize

that the commercial child obscenity, restricted by COPA as

“harmful to minors,” also falls outside the protection of the

First Amendment. Amici provide the following reasons in

support:

Reason I — The Government has an interest in maintaining a

decent society through restrictions on commercialized

obscenity.

In Paris Adult Theater I, (hereinafter Paris) this

Court affirmed the existence of a legitimate government

8

interest in maintaining a decent society by restricting

commercialized obscenity:

The States have a long-recognized legitimate interest

in permitting regulation of obscene material in local

commerce and in_ all places of public

accommodation, as long as these regulations do not

run afoul of specific constitutional prohibitions. In an

unbroken series of cases extending over a long

stretch of this Court’s history it has been accepted as

a postulate that the primary requirements of decency

may be enforced against obscene publications.

(internal quotes and citations omitted) Paris, 413

USS. at 57.

In particular, Chief Justice Burger, for the Court in

Paris, held that a legitimate state interest exists in restricting

commercialized obscenity -- even where effective safeguards

“against exposure to juveniles and to passersby” exist. /d.

This Court expressly recognized that the American public

has a right to maintain a decent society:

These include the interest of the public in the quality

of life and the total community environment, the tone

of commerce in the great city centers, and, possibly,

the public safety itself... It concerns the tone of the

society, the mode, ... the style and quality of life,

now and in the future *** there is a nght of the

Nation and of the States to maintain a decent society.

(quotation marks and citation omitted) Jd. at 58-59.

It is certainly clear that Congress, in working toward

passage of COPA, believed in a mght of our nation to

maintain societal decency. For example, at a hearing on

legislative proposals, one member of Congress cited to a

recent national poll finding that “the number one concern on

9

the minds of voters is the moral decline of our society.”

Legislative Proposals to Protect Children from

Inappropriate Materials on the Internet: Before the

Subcomm. on Telecommunications, Trade, and Consumer

Protection of the House Comm. on Commerce, 105th Cong.

9 (1998) [hereinafter, Hearings], (statement of the Rep.

Oxley). Congressman Oxley’s statement cautioned that:

If we as a nation hope to address the coarsening of

our culture and the loss of values among our young

people, we have to begin by addressing the most

serious threat, and do so by protecting kids from the

degrading content readily available on the Internet.

Id.

In Ginsberg, this Court upheld the constitutionality of

the state criminal child obscenity statute upon which

Congress patterned COPA. Ginsberg itself noted that the

state court of last resort, in upholding the legislature’s power

to employ variable concepts of obscenity, relied on “its

power to protect the health, safety, welfare and morals of its

community...” Ginsberg, 390 U.S. at 636. Thus, if the

physical and psychological states of our children are of

obvious importance, the moral condition of our nation’s

youth is at least as compelling. As Justice Harlan stated in

his opinion in Poe v. Ullman, 367 U.S. 497, 545-46 (1961):

Yet the very inclusion of the category of morality

among state concerns indicates that society is not

limited in its objects only to the physical well-being

of the community, but has traditionally concerned

itself with the moral soundness of its people as well.

Indeed to attempt a line between public behavior and

that which is purely consensual or solitary would be

to withdraw from community concern a range of

10

subjects with which every society in civilized times

has found it necessary to deal . . .

The broader issue in the instant case is whether the

Constitution permits a state to regulate on the basis of

morality. The more specific (and perhaps easier) question is

whether a state may constitutionally regulate commercial

child obscenity on the basis of morality.

Consideration of the Court’s obscenity jurisprudence,

on its own terms, reveals that the prevailing test for

obscenity is rooted in the state’s interest in preserving

morality and decency. A careful analysis reveals that,

“[o]bscenity laws. . .are based on traditional notions, rooted

in this country’s religious antecedents, of governmental

responsibility for communal and individual ‘decency’ and

‘morality’.” Henkin, Morals and the Constitution: The Sin

of Obscenity, 63 Colum. L.R. 391, (1963).

One must analyze obscenity law within the larger

context of morals legislation in general. A state (or the

federal government) certainly has the power to prohibit

certain conduct solely because it contravenes the collective

moral code of the community. The power of the government

to regulate for the advancement and preservation of morals

and decency is a time-honored principle of law:

“Whatever differences of opinion may exist as to the

extent and boundarnes of the police power, and

however different it may be to render a satisfactory

definition of it, there seems to be no doubt that it

does extend to. . .the preservation of good order and

the public morals.” Boston Beer Co. v.

Massachusetts, 97 U.S. 25, 33 (1878).

1]

This power of the government to regulate ‘or

purposes of morality and decency is reflected in laws

prohibiting prostitution, incest, adultery, and polygamy, to

name a few. These offenses include “victimless” crimes, in

which the only discernible evil is that of immorality. An

analysis of the test for restricting adult obscenity reveals that

such is an appropriate power of government.

When the Supreme Court first had occasion to deal

with the issue of obscenity in Roth, 354 U.S. 476, it did not

adopt the clear and present danger test, which had its origin

in Schenck v. United States, 249 U.S. 47 (1919). The clear

and present danger test is a device used by the courts to

connect speech with conduct the government may regulate

(i.e., non-speech evil). If, for instance, speech causes a

breach of the peace, the government may certainly punish

the person who directly brought about the substantive evil

that the government has a nght to prevent. If the rationale

for proscribing obscenity were simply that it caused rapes or

sexual assaults, there would have been no need to create an

entire new category of unprotected speech. But, if the

rationale for obscenity laws was to maintain standards of

morality and decency and to preserve the moral tone of the

community (see, e.g., Paris, 413 U.S. at 57-59), another

method of analysis was needed. The Court adopted this new

approach by creating the Roth test: “Whether to the average

person, applying contemporary community standards, the

dominant theme of the material, taken as a whole, appeals to

the prurient interest.” 354 U.S. at 489

In elaborating on what obscenity meant, from a

constitutional perspective, the Court stated that “a thing is

obscene if, considered as a whole, its predominant appeal is

to prurient interest, i.e. a shameful or morbid interest in

nudity, sex, or excretion, .. .” Roth 354 U.S. at 487-88 n. 20

12

quoting MODEL PENAL CODE §207.10 (2) (Tentative Draft

No. 6, 1957).

The clanfying quotation from the Model Penal Code

focuses on an unhealthy lustful, shameful, or morbid interest

in nudity, sex, or excretion. This clearly and unequivocally

- posits morality and decency as the justification for

prohibiting obscenity, even as to adults. These bases for

creating a new category of unprotected speech become even

more compelling when applied to children.

In its revised obscenity test from Miller, this Court

retained the “prurient interest” test, and also asked whether

the work depicts or describes, in a patently offensive way,

sexual conduct specifically defined by the applicable state

law. 413 U.S. at 27. The thrust of the obscenity test is

clearly not that any evil conduct must accompany the speech.

The use of “prurient interest” as the touchstone for

obscenity, as well as the focus on “patently offensive” in the

Miller test, are clear indicators that obscene speech

comprises a category of unprotected activity precisely

because it offends contemporary standards of morality and

decency.

Another aspect of Miller points in the direction of the

concept of obscenity having a close relationship to decency.

In describing what a state could clearly prohibit as obscene

under Miller, the Court lists, “[pjatently offensive

representations or descriptions of ... excretory functions...”

413 U.S. at 25. The evil a state addresses with such a statute

is an offense to a person’s sensibilities caused by am explicit

description of excretory functions. This kind of statute is not

directed to speech causing any sort of anti-social sexual

behavior; rather its focus is on maintaining an acceptable

level of decency and preventing injury to an adult’s moral

sensibilities. That such is an acceptable reason for a state to

--

—_

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regulate speech is even more remarkable because the usual

rule is that a government cannot regulate speech simply

because it offends someone. See, e.g., Collin v. Smith, 578

F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916 (1978)

(striking down a local ordinance which made it a crime to

display any material that causes racial or religious hatred).

Obscenity regulation is permissible because the speech

effects are a special kind of offense to the morality and

decency of the community. Morality and decency, then, are

placed on a higher level than psychic or emotional

sensibilities.

Prior to enunciating the test for obscenity in Miller,

this Court discussed the rationale for certain categories of

speech being unprotected by the First Amendment:

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 . . . It has been well observed that such

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. Miller, 413 U.S. at 20-21 (internal

quotation marks and citations omitted).

The last word in this excerpt is especially instructive.

Morality is the prevailing value when balanced against

speech that is not an essential part of any exposition of ideas.

This is precisely the balance struck by Congress when it

promulgated COPA. Commercial child obscenity is

balanced against society's interest in protecting and

preserving the moral values of our nation’s children.

14

Commercial child obscenity, as carefully defined by

COPA in conformance with the Miller standards, is clearly

not a category of speech that is an essential part of any

exposition of ideas. Wen placed up against society's

interest in protecting cw children and preserving societal

decency, no question exists about which value is more

important.

Reason II -- The Government has an interest in protecting

our children from _ exploitation and exposure to

commercialized obscene materials.

In New York v. Ferber, 458 U.S. 747, 765-66 (1982),

this Court concluded that non-obscene child pornography fell

into a category of material not entitled to protection under

the First Amendment. In reaching its conclusion, this Court

reaffirmed that:

It is evident beyond the need for elaboration that a

State's interest in safeguarding the physical and

psychological well-being of a minor is compelling. A

democratic society rests, for its continuance, upon the

healthy, well-rounded growth of young people into

full maturity as citizens. Accordingly, we have

sustained legislation aimed at protecting the physical

and emotional well-being of youth even when the

laws have operated in the sensitive area of

constitutionally protected nghts. Ferber, 458 U.S. at

756-57 (1982) (Internal quotation marks and citations

omitted).

Thus, it is clear that “[t}he well-being of its children

is ... a subject within the State’s constitutional power te

regulate...” Ginsberg, 390 U.S. at 639; see also, FCC y,

Pacifica Foundation, 438 U.S. 726, 749-50 (1978)

(government's interest in the well-being of its youth justified

—_ <> ——— I —

15

special treatment of non-obscene indecent broadcasting

received by adults and children); and Reno v. ACLU, 521

U.S. 844, 849 (1997) (addressing Congress's earlier attempt

to restrict sexually explicit material on the Internet, this

Court acknowledged that the Government has an interest in

protecting children from harmful materials -- and noted the

Act’s legitimate purposes.)

Similar to COPA, the statute upheld in Ginsberg

made it a crime “knowingly to sell *** to a minor under 17

... any picture *** which depicts nudity *** and which is

harmful to minors,” ... and “any *** magazine *** which

contains *** (such pictures) *** and which, taken as a

whole, is harmful to minors.” Ginsberg, 390 U.S. at 633.

The obscene materials commercially sold to a child

in Ginsberg were

‘harmful to minors’ in that they had, within the

meaning of [the statute] that quality of ***

representation *** of nudity *** (which) *** (i)

predominantly appeals to the prunent, shameful or

morbid interest of minors, and (ii) is patently

offensive to prevailing standards in the adult

community as a whole with respect to what is

suitable material for minors, and (iii) is utterly

without redeeming social importance for minors.

Ginsberg, 390 U.S. at 632-33.

Even though the material at issue in Ginsberg was

“not obscene for adults,” this Court recognized the statute's

restrictions as “obscenity of material sold to minors under

17.” Ginsberg, 390 U.S. at 634-35. In upholding the statute,

this Court acknowledged that it, like COPA, was “a variable

from the formulation for determining obscenity [used by the

Court for adults].” Ginsberg, 390 U.S. at 635.

16

This Court discussed the efficacy of adopting a

concept of “variable obscenity” as a tool to determine

whether material obscene to children falls into a category of

speech unprotected by the First Amendment:

Variable obscenity . . . furnished a useful analytical

tool for dealing with the problem of denying

adolescents access to material aimed at a primary

audience of sexually mature adults. For variable

obscenity focuses attention upon the make-up of

primary and peripheral audiences in_ varying

circumstances, and provides a reasonably satisfactory

means for delineating the obscene in_ each

circumstance.” Ginsberg, 390 U.S. at 634, n4

(emphasis added; internal quotation marks and

citations omitted).

COPA does precisely what this Court alluded to in

Ginsberg. Its legislative history and its carefully crafted

language deal only with material intended for an audience of

sexually mature adults, and that is by statutory definition

unprotected as to minors. COPA also focuses on the primary

(child) audience and the peripheral (adult) audience, and

draws a constitutionally appropriate distinction between the

two classes.

Perhaps the most important factor in analyzing the

appropriateness of the concept of variable obscenity is that of

the “varying circumstances” surrounding the dissemination

of speech. The most salient circumstance is the method of

communication -- the Web. This medium is intrinsically

different from books, movies, magazines, records, TV, radio,

or any other medium of communication with which this

Court has dealt in the past. The paradigm has changed. An

almost universally available medium of communication for

17

the dissemination of commercial child obscenity changes the

constitutional calculus in profound ways.

The Court has always analyzed speech cases

transactionally. That is, it looks at who the speaker is, who

the audience is, and what the method of communication is.

As each of these variables changes, the analysis may change.

For instance, in FCC v. Pacifica Foundation, the Court

upheld a restriction on the broadcast of a sexually and

excretorily explicit monologue by George Carlin. 438 U.S.

726 (1978). The monologue was broadcast on the radio,

during daytime hours, and heard by a child. /d. at 729-730.

These factors led the Court to uphold a time restriction on

the broadcast, observing that there were other ways for

consumers to receive the information. /d. at 749-50.

However, in Cohen v. California, 403 U.S. 15, 91

(1971), the Court reversed a conviction for breach of the

peace occasioned by a person having a vulgar message on a

jacket inside a courthouse. The main factor that

distinguished Pacifica from Cohen was the medium of

communication. In Pacifica, the transmission over the

airwaves was found to be very intrusive into the nght of a

parent to control what his child heard, because it was an

auricular assault, and the burden was on the disseminator to

change the time of his speech. 438 U.S. at 748-50. In Cohen,

on the other hand, a visual assault in a courthouse was not

pervasive enough to punish the gesture, and Justice Harlan,

for the Court, suggested that the solution to the problem was

simply for the viewer to look away. Cohen, 403 U.S. at 21-

22.

Transmission by the Internet is the most intrusive,

pervasive medium of communication ever created. In the

otherwise privacy and safety of home, the Internet's

omnipresent accessibility to our children makes it an

18

especially dangerous method of transmitting commercial

child obscenity.

Like COPA in the instant case, the statute in

Ginsberg simply adjusted “the definition of obscenity to

social realities by permitting the appeal of this type of

material to be assessed in term of the sexual interests of such

minors.” Ginsberg, 390 U.S. at 638 (internal quote and

citations omitted). Here, as in Ginsberg, the government

was justified in restricting “the availability of sexual material

to minors since it was rational for the legislature to find that

the minors’ exposure to such material might be harmful.”

Ginsberg, 390 U.S. at 639. In this regard, Ginsberg

recognized that:

[C]onstitutional interpretation has consistently

recognized that the parents’ claim to authority in their

own household to direct the rearing of their children

is basic in the structure of our society. It is cardinal

with us that the custody, care and nurture of the child

reside first in the parents, whose primary function

and freedom include preparation for obligations the

state can neither supply nor hinder. The legislature

could properly conclude that parents and others,

teachers for example, who have this primary

responsibility for children’s well-being are entitled to

the support of laws designed to aid discharge of that

responsibility. /d.

When Congress enacted COPA it, like the legislature

that promulgated the statute in Ginsberg, “expressly

recognized the parental role in assessing sex-related material

harmful to minors” according to an adult community

standard with regard to what is suitable to minors. Ginsberg,

390 U.S. at 639; see also 47 U.S.C. § 231 (e)6)(1998);

Miller, 413 U.S. at 24-25 (1973), Smith v. United States, 431

re ~--

19

U.S. 291, 300-02, 309 (1977), and Pope v Illinois, 481 U.S.

497, 500-01 (1987). Moreover, nothing in COPA restricts

“the discretion of the parent to purchase material for their

children who are under the age of 17.” See, H.R Rep. No.

105-775, at 15 (1998).

Ginsberg further recognized an independent interest

of the government in protecting the “welfare of children” and

ensuring they are “safeguarded from abuses which might

prevent their growth into free and independent well-

developed ... citizens.” Ginsberg, 390 U.S. at 640-41

(internal quotation marks and citation omitted). In Miller,

this Court stated, “States have a legitimate interest in

prohibiting dissemination or exhibition of obscene material

when the mode of dissemination carries with it a significant

danger of offending the sensibilities of unwilling recipients

or of exposure to juveniles.” Miller, 413 U.S. at 18-19.

Miller then upheld the constitutionality of a criminal

obscenity statute and articulated the test for obscenity

adopted by Congress in COPA. 413 U.S. at 24-25 (1973), as

modified by Smith, 431 U.S. at 300-02, 309 (1977), and

Pope, 481 U.S. at 500-01 (1987). Finally, in Paris this

Court, as in previous decisions, again “pointedly recognized

the high importance of the state interest in regulating the

exposure of obscene materials to juveniles and unconsenting

adults,” Paris, 413 U.S. at 57 citing inter alia, Miller, 413

U.S. at 18-20.

Reason III — The Commercialized Child Obscenity,

Restricted as “Harmful to Minors” in COPA is, in Fact,

Dangerously Harmful to our Children and Their Future.

Evidence in the record links the material proscribed

in COPA to criminal and other dangerously unhealthy

conduct. For example, in its report accompanying COPA,

Congress documeriied how the material restricted by COPA

20

harms children. H.R. Rep. No. 105-775, at 11 (1998).

Specifically, the report indicated that:

A child’s sexual development occurs gradually

throughout childhood. Exposure to pornography

shapes children’s sexual perspectives by providing

them with information on sexual activity intended for

adults. The type of information provided by

pornography, however, does not provide children

with a normal sexual perspective. Unlike learning

provided in an educational or home setting, exposure

to pornography is counterproductive to the goal of

healthy and appropriate sexual development in

children. . . . /d. (citing Brooks, Assistant Chief of

Psychology Services, Department of Veterans

Affairs, The Centerfold Syndrome (1996)).

The report also summarized testimony before

Congress highlighting the dangers of exposing children to

material restricted by the statute:

Pornography produces “permission-giving beliefs”

for sexual pathology and sexual violence and that

pornography produces distortions that change an

individual’s belief system. As a result, children

exposed to pornography can become victims or

victimizers, encouraged by the strong sexual images

contained in pornography found on the World Wide

Web. H.R. Rep. No. 105-775, at 11 (1998), citing

testimony of Dr. Mary Anne Layden.

Indeed, in a congressional hearing, Congress received

compelling evidence of horrendous problems that occur in

adults, from their exposure as children to material proscribed

by COPA. The problems include unhealthy, harmful sexual

addiction, suicide, rape, and other cnmes of violence. See

21

Hearings, 105th Cong. 55-57, 84 (1998)(statement of Dr.

Mary Anne Layden). For example, Dr. Layden testified that

for the past 13 years she had specialized in the treatment of

sexual violence victims and perpetrators. In all those 13

years she had not treated one case of sexual violence that did

not include material proscribed by COPA as a substantial

factor. See Hearings, 105th Cong. 56 (1998) (statement of

Dr. Mary Anne Layden).

Moreover, according to the Federal Bureau of

Investigation, the Internet and other on-line services have

become “one of the most prevalent techniques by which

pedophiles and other sexual predators” identify and recruit

“children for sexually explicit relationships.” Hearings,

105th Cong. 26 (1998) (Statement of Stephen R. Wiley,

Chief, Violent Crmes and Major Offenders Sections,

Federal Bureau of Investigation).

The congressional report accompanying COPA also

noted “the body of research indicating that pornography has

significant impact on attitudes and values, and that such

impact is clearly harmful to minors.” H.R. Rep. No. 105-

775, at 11 (1998) citing testimony from the organization

Enough is Enough.

When Congress passed the Child Internet Protection

Act (CIPA), another statute designed to protect the well-

being of children on the Internet, it documented additional

evidence of the danger facing our children. S. Rep. No. 106-

141, at 1 (1999). The Senate Report documented the

increased access to the Internet by schools and libraries

receiving federal assistance, and then reported that:

Though the Internet represents tremendous potential

in bringing previously unimaginable education in

information opportunities to our nation’s children,

22

there are very real risks associated with the use of the

Internet. Pornography, including obscene material,

child pornography, and indecent material is available

on the Internet. This material may be accessed

directly and intentionally, or may tum up as the

unintended product of a general Internet search .. .

the aggressive tactics of commercial pornographers

on the Internet expose children to random, and

unintended exposure to sexually explicit material. /d.

at 2.

The Senate Report next documented how the

exposure to pornography harms children and _ their

development. /d. at 3. The Report continued by documenting

the increasing incidents of pedophiles utilizing the

Internet to lure and seduce children into illegal and

abusive sexual activity. In many cases, such activity

is the product of individuals, taking advantage of the

anonymity provided by the Internet to stalk children

. . . [A]n increasingly disturbing trend is that of

highly organized, and technologically sophisticated

groups of pedophiles who utilize advanced

technology to . . .__ sexually exploit and abuse

children. /d. at 3-4.

It is clear in the instant matter that the danger to our

children is real. When the constitutionality of a statute like

COPA is at issue, this Court traditionally has accepted

legislative findings in connection with the potential danger

and harm to children. Ferber, 458 U.S. at 757-58

23

Reason IV — Permitting a commercial onslaught of patently

offensive sexual material to children (designed to appeal to a

child’s unhealthy lustful, shameful, morbid interest in sex —

and lacking serious literary, artistic, political, or scientific

value), lacks constitutional value.

Like adult obscenity and child pornography statutes.

amici acknowledge that commercial child obscenity

restrictions “run the risk of suppressing protected

expression.” See Ferber, 458 U.S. at 756. Amici submit,

however, that material of the kind described in COPA lacks

constitutional value, due to its extreme detachment from the

fundamental principles protected by the First Amendment.

“The protection given speech and press was

fashioned to assure unfettered interchange of ideas for the

bringing about of political and social changes desired by the

people.” Roth, 354 U.S. at 484. Again, commercial child

obscenity, as carefully defined by COPA in conformance

with the Miller standards, is clearly not a category of speech

that is an essential part of any exposition of ideas. The value

of permitting a commercial onslaught of patently offensive

sexual material to children (designed to appeal to a child’s

unhealthy, shameful, morbid interest in sex — and lacking

serious literary, artistic, political, or scientific value) is,

therefore, “exceedingly modest, if not de minimis;” See

Ferber, 458 U.S. at 763, Miller, 413 U.S. at 34-35.

Free speech ranks among the most cherished of our

fundamental freedoms. Amici suggest that it is exceedingly

doubtful, however, that the framers of our Constitution

intended to protect pedophiles and commercial peddlers of

pornography who provide access to patently offensive hard-

core sexually explicit material to our children. “[T]o equate

the free and robust exchange of ideas and political debate

with commercial exploitation of obscene material demeans

24

the grand conception of the First Amendment and its high

purposes in the historic struggle for freedom.” Miller, 413

US. at 34.

“Harmful” sexually explicit material for adults, ought

not be constitutionally protected when someone, for

commercial purposes, makes it available to children —

whether at the newsstand, the World Wide Web, or

anywhere else. This is especially true when the commercial

peddler of porn intrudes via the Internet into the sanctity of

one’s home to sell their wares. Too much is at stake, whether

in terms of our nation’s right to societal decency, or the well-

being of our children.

Reason V -- Recognizing and classifying commercial child

obscenity, as a category of material unprotected by the First

Amendment, is consistent with this Court’s prior decisions.

In the instant case, Congress deliberately drafted the

“harmful to minors” definition in COPA consistent with this

Court's jurisprudence in the area of child obscenity.

Congress patterned COPA after the child obscenity

requirement upheld in Ginsberg, drawing on the three-part

test for obscenity for minors modified in Miller, 413 U.S. at

24-25, Smith, 431 U.S. at 300-02, 309 (holding that an

“average person, applying contemporary community

standards” also serves as the standard in the second prong,

determining the patent offensiveness of the material) and

Pope v Illinois, 481 U.S. at 500-01 (holding that in prong

three, “a reasonable person” standard is applied to the

serious value determination). Thus, when Congress defined

"material that is harmful to minors" in COPA, it created a

Millerized-Ginsberg definition for what is obscene for

minors. It is important to note that this Court has directed its

25

holdings, “not at thoughts or speech, but at depiction and

description of specifically defined sexual conduct” that may

be properly regulated. See, Paris, 413 U.S. at 69.

A careful reading of COPA’s provisions, in the light

of these cases, bnghtly illuminates congressional

understanding of this Court’s constitutional jurisprudence

when it promulgated COPA. Thus, classifying commercial

child obscenity, as a category of material unprotected by the

First Amendment, is consistent with this Court’s prior

decisions.

B. COPA’S PROVISIONS ARE RATIONALLY RELATED TO

LEGITIMATE GOVERNMENT INTERESTS

The commercial child obscenity, proscnbed in COPA

as “harmful to minors” is, for the five reasons discussed in

the previous section, a category of speech wholly outside the

protection of the First Amendment. To protect our nation’s

children, and to preserve a decent society, Congress may,

consistent with the First Amendment, therefore, restrict

commercialized child obscenity on the World Wide Web.

Moreover, this is true even if, in the extremely unlikely

event, such material is not also obscene to adults. Restricting

commercial peddlers of child obscenity from selling their

material to our children on the Web is rationally related to

the government’s national interest in maintaining a decent

society. It is also rationally related to the government’s

interest in protecting the well-being of our children. COPA

is, therefore, constitutional. See, e.g., Ginsberg, 390 U.S. at

641-43; Miller, 413 U.S. at 18-19; Paris, 413 U.S. at 57.

26

el JUDGED IN RELATION TO THE STATUTE’S PLAINLY

LEGITIMATE SWEEP, THE CHILD ONLINE PROTECTION ACT IS

NOT SUBSTANTIALLY OVERBROAD

“(T]he wide-reaching effects of a court striking down

a Statute on its face, at the request of one whose own conduct

may be punished despite the First Amendment,” are

undisputed. Ferber, 458 U.S. at 769 quoting Broadrick v.

Oklahoma, 413 U.S. 601, 613 (1973). This Court, therefore,

recognizes “that the overbreadth doctrine is ‘strong

medicine’” and employs it ‘with hesitation, and then only as

a last resort.”” Jd. Indeed, “[t]he traditional rule is that a

person to whom a statute may constitutionally be applied

may not challenge that statute on the ground that it may

conceivably be applied unconstitutionally to others in

situations not before the Court.” Ferber, 458 U.S. at 767.

Given that this traditional rule is grounded in Article III of

the United States Constitution (limiting the jurisdiction of

federal courts to actual cases and controversies), any

exception — like the overbreadth doctrine — “must be

carefully tied to the circumstances in which facial

invalidation of a statute is truly warranted.” Ferber, 458 U.S.

at 768-69. Thus, to succeed in a facial challenge to a statute

like COPA “the overbreadth of a statute must not only be

real, but substantial as well, judged in relation to the statute’s

plainly legitimate sweep.” Broadrick, 413 U.S. at 615;

Ashcroft v. ACLU, 535 U.S. at 584

This Court struck down Congress’s first attempt to

protect the nation’s children from exposure to indecent

sexually explicit matenal on the Internet. Reno v ACLU, 521

U.S. 844 (1997) (holding the Communications Decency Act

of 1996 (CDA) unconstitutional.) As recognized in Ashcroft,

Congress, in drafting COPA, responded to the overbreadth

27

objections to the CDA relied upon by the Court in the Reno

decision:

First, while the CDA applied to communications over

the Internet as a whole, including, for example, e-

mail messages, COPA applies only to maternal

displayed on the World Wide Web. Second, unlike

the CDA, COPA covers only communication made

“for commercial purposes.” And third, while the

CDA prohibited “indecent” and “patently offensive”

communications, COPA restricts only the narrower

category of “material that is harmful to minors”

Ashcroft v. ACLU, 535 U.S. at 569-70; see also H.R.

Rep. No. 105-775, at 16 (1998).

Thus, it is clear that Congress intended to limit the

scope of COPA to address an expressly narrow part of the

child obscenity problem. As discussed previously, Congress

patterned the definition of “harmful to minors” in COPA

after the child obscenity requirement upheld in Ginsberg,

drawing on the three-part test for obscenity for minors

modified in Miller, 413 U.S. at 24-25, Smith, 431 U.S. at

300-02, 309, and Pope, 481 U.S. at 500-01. The plain

language used in COPA, as construed in this Court’s

obscenity jurisprudence, cannot, by definition, censor or

inhibit protected speech of any kind. This is especially true

in light of COPA’s affirmative defenses, which further

narrow the scope of COPA’s coverage. Thus, Congress

made clear it did not intend the provisions of COPA to apply

to serious treatment of sexual issues. In any case, the

materials Respondents allege are at risk are not at risk.

Indeed, the District Court opinion in this case reveals that the

trial court found none of the material at issue even

potentially “harmful to minors.” ACLU v. Reno, 31 F.Supp.

2d 473, 480, 484-86 (E.D. Pa. 1999). COPA’s provisions

virtually eliminate any possibility of selective prosecutorial

28

enforcement, especially when read in the bright light of this

Court’s obscenity jurisprudence. Judged in relation to the

COPA’s plainly legitimate sweep, any overbreadth here is

illusory, and, in context, certainly not substantial.

“When a federal court is dealing with a federal statute

challenged as overbroad, it should, of course, construe the

statute to avoid constitutional problems, if the statute is

subject to such a limiting construction.” Ferber, 458 U.S. at

769 n. 24.

ONCLUSION

Amici ask that this Court not take away the right of

the American adult community to preserve societal decency

and to protect its children. Who we are morally, as

individuals and as a nation, is a fabric made up of much

more than express opinions. Here it is important to note

again that, in the decisions relied upon by amici, this Court

has directed its holdings, “not at thoughts or speech, but at

depiction and description of specifically defined sexual

conduct” that may be properly regulated. See, Paris, 413

U.S. at 69.

Your amici suggest that permitting a commercial

onslaught of patently offensive sexual material to children

(designed to appeal to a child’s unhealthy, shameful, morbid

interest in sex) will physically desensitize our children to that

higher sentiment of individual and collective decency.

Collectively, if this Court sanctions such a commercial

offensive against our nation's children in the name of free

speech, expect the remnants of what is left of our national

moral fabric to unravel.

—

29

Undeniably, we stand at a constitutional construction

site. Those who came before us built a constitutional

democratic republic upon fundamental foundations of

decency. It is now our watch. It is well for us to recall,

therefore, the ancient truth that “righteousness exalts a

nation.” Proverbs 14:34 (NIV).

If, in the name of free expression, we guarantee the

night of individuals to engage in obscene harmful conduct to

our children, we merely create an illusion of a nation willing

to protect fundamental freedoms. Such a course inevitably

erodes the fundamental foundations of our country. In the

end, the structural institutions of free government may stand

for a time; the very essence for which they stand, however,

ceases to exist.

Here the “evil to be restricted” “overwhelmingly

outweighs the expressive interests, if any, at stake.” Ferber,

458 U.S. at 763-64. The class of material defined in COPA

“bears so heavily and pervasively on the welfare of children”

and on a national nght to decency in society, that its

commercialization on the Internet overwhelmingly tips the

balance of any competing interests. Ferber, 458 U.S. at 763-

64; Paris, 413 U.S. at 57-61. Moreover, the method of

transmission into the privacy and safety of our home, is the

most intrusive, pervasive medium of communication ever

created. Indeed, the Internet's ubiquitous accessibility to our

children makes it a particularly dangerous method of

transmitting commercial child obscenity. Amici contend,

therefore, that it is permissible to consider these materials

wholly undeserving of the protections afforded by the First

Amendment.

COPA’s provisions are rationally related to the

governmental interests of protecting our nation’s children,

and preserving a decent society. Congress may, therefore,

30

consistent with the First Amendment, _ restrict

commercialized child obscenity on the Internet that is

“harmful to minors.” Amici here provide this Court with

good, serious reasons to reach such a holding. For these

reasons, amici urge this Court to reverse the Court of

Appeals and uphold the constitutionality of COPA as passed

by Congress.”

Respectfully submitted,

WILLIAM WAGNER

Counsel of Record

STEVE REED

35 N. Lake Ave. PHILIP J. PRYGOSKI

Pasadena, CA 91101 CooLey LAW SCHOOL

(626)449-452] 300 South Capitol

Lansing, MI 48933

PAT TRUEMAN (517) 371-5140

801 G. Street NW

Washington D.C. 2001

(202)393-2100

November 26, 2003

* Amici, in the alternative, suggest that COPA is narrowly tailored

to compelling governmental interests, and would therefore, on that

alternative basis, also urge reversal.