Ashcroft V. American Civil Liberties Union - ACLU V. Ashcroft

ACLU V. Ashcroft

The case ACLU v. Ashcroft started on January 11, 1999. According to Justice Thomas's majority opinion,

...COPA defines "material that is harmful to minors" as

"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).

COPA opponents argued that self installed filters were much more effective at blocking obscene/indecent content, and would allow individuals to choose what content they wanted to see, not the government. Opponents also held that legal speech would be made criminal by COPA, and that adults would be prevented from seeing legal content if they did not have a credit card to get past security screens. It was also argued that in some cases fully complying with COPA would not have guaranteed freedom from prosecution (Stevens) and that the plan was flawed because some minors do have their own credit cards, and could thus go around the screens with ease.

Issues: Filters: They have four problems. 1. Under blocking where some pornographic material is still able to pass through. 2. Software costs money and not every family has the $40, or so, necessary for installation. 3. Filtering depends upon the parent’s willingness to decide which web sites are suitable for their children and enforcing this. 4. Software blocking lacks precision. A lot of valuable material is blocked along with the harmful content.

Wording: The phrases, “prurient interest” and “no serious value” block material that does not fall within the law. For example, material that would be blocked under these phrases are: serious discussions about birth control practices, homosexuality, or the account by a 15-year-old girl who was raped, and a guide to the self-examination of testicular cancer. There is an uncertainty about how to define close to obscene material that may be on the border of being defined as indecent.

Age Verification: Age screening could lead to embarrassment in some users. This requires all adults to enter a credit card number or age verification number, even if they are childless. Problem: Children may obtain a parents credit card number, if desired.

Decision: COPA should be enjoined because the statute likely violates the first amendment. There are less restrictive alternatives to COPA. Blocking and filtering software are less restrictive. Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Childless adults can access information they have a right to see without having to identify themselves. Adults with children may turn off their filters to access material they wish to view. Congress passed two more less restrictive alternatives to COPA: the prohibition of misleading domain names and the minor safe “dot-kids” domain name. Blocking and filtering software also blocks all pornography (40% of content deemed harmful to minors comes from overseas).