Speech harmful to children

Speech that is otherwise fully protected by the First Amendment may be restricted in order to protect children. This is because the Supreme Court has “recognized that there is a compelling interest in protecting the physical and psychological well-being of minors.” However, any restriction must be accomplished “‘by narrowly drawn regulations without unnecessarily interfering with First Amendment freedoms.’ It is not enough to show that the government’s ends are compelling; the means must be carefully tailored to achieved those ends.”

Thus, the government may prohibit the sale to minors of material that it deems “harmful to minors” (“so called ‘girlie’ magazines”), whether or not they are not obscene as to adults. It may prohibit the broadcast of “indecent” language on radio and television during hours when children are likely to be in the audience, but it may not ban it around the clock unless it is obscene.

The Supreme Court has stated that, to be indecent, a broadcast need not have prurient appeal; “the normal definition of ‘indecent’ refers merely to nonconformance with accepted standards of morality.” The FCC holds that the concept “is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.”

The FCC applied this definition in a case in which the singer Bono said at the Golden Globe Awards that his award was “f[***]ing brilliant.” The FCC Enforcement Bureau found that use of the word “as an adjective or expletive to emphasize an exclamation” did not fall within the definition of “indecent.” The Commission, however, overturned the Bureau, ruling that “any use of that word or a variation, in any context, inherently has a sexual connotation. . . .” Federal law currently bans indecent broadcasts between 6 a.m. and 10 p.m.

Similarly, Congress may not ban dial-a-porn, but it may (as it does at 47 U.S.C. § 223) prohibit it from being made available to minors or to persons who have not previously requested it in writing.

In Reno v. American Civil Liberties Union, the Supreme Court declared unconstitutional two provisions of the Communications Decency Act (CDA) that prohibited indecent communications to minors on the Internet. The Court held that the CDA’s “burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” “[T]he governmental interest in protecting children from harmful materials. . . does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not ‘reduc[e] the adult population. . . to. . . only what is fit for children.’”

The Court distinguished the Internet from radio and television because (1) “[t]he CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet,”(2) the CDA imposes criminal penalties, and the Court has never decided whether indecent broadcasts “would justify a criminal prosecution,” and (3) radio and television, unlike the Internet, have, “as a matter of history. . . ‘received the most limited First Amendment protection, ... in large part because warnings could not adequately protect the listener from unexpected program content. . . . [On the Internet], the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.”

In 1998, Congress enacted the Child Online Protection Act (“COPA”), P.L. 105-277, title XIV, to replace the CDA. COPA differs from the CDA in two main respects: (1) it prohibits communication to minors only of “material that is harmful to minors,” rather than material that is indecent, and (2) it applies only to communications for commercial purposes on publicly accessible websites. COPA has not taken effect, because a constitutional challenge was brought and the district court, finding a likelihood that the plaintiffs would prevail, issued a preliminary injunction against enforcement of the statute, pending a trial on the merits. The Third Circuit affirmed, but, in 2002, in Ashcroft v. American Civil Liberties Union, the Supreme Court held that COPA’s use of community standards to define “material that is harmful to minors” does not by itself render the statute unconstitutional.

The Supreme Court, however, did not remove the preliminary injunction against enforcement of the statute, and remanded the case to the Third Circuit to consider whether it is unconstitutional nonetheless. In 2003, the Third Circuit again found the plaintiffs likely to prevail and affirmed the preliminary injunction. In 2004, the Supreme Court affirmed the preliminary injunction because it found that the government had failed to show that filtering prohibited material would not be as effective in accomplishing Congress’s goals. It remanded the case for trial, however, and did not foreclose the district court from concluding otherwise.

On March 22, 2007, the district court found COPA unconstitutional and issued a permanent injunction against its enforcement. The grounds for its decision were that “COPA is not narrowly tailored to Congress’ compelling interest,” the Attorney General “failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest,” and “COPA is impermissibly vague and overbroad.”