Internet pornography is a battlefield in U.S. law. Since the explosion of public interest in the Net in the 1990s, the public, lawmakers, and the courts have argued over how to control online porn. Congress and state legislatures have passed several laws aimed at protecting children from exposure to socalled cyber porn, but the most sweeping of these have often failed to pass constitutional tests. The failure of these laws in court means this popular yet controversial medium faces few regulations.
According to the Internet Filter Review (an industry group advocating pornography filtering), Internet pornography accounts for $2.5 billion of the $57 billion worldwide pornography market. The Review found that in 2003 there were 4.2 million pornography Web sites allowing access to 72 million worldwide visitors, of which 40 million of them were Americans. One fourth of the search engine requests every day (68 million) are for pornographic material.
In some respects, the issue continues a legal struggle many decades old. Opponents of pornography have long tried to control it on moral grounds, even as proponents sought to protect it as a valid expression of free speech. Traditionally, opponents won these battles. The Supreme Court established that obscenity is not protected by the First Amendment, but the difficult question in each case has been defining what is and what is not obscene. Court rulings gradually shifted from a broad, forbidding position of the late 1950s to holding, in the 1970s, that communities could set their own standards for obscenity. Replayed in countless courtrooms, the tug-of-war between these camps has continued ever since.
But the fight over cyber porn carries traditional arguments into new areas shaped by technology. A chief concern is that the Internet allows minors easy access to it through search engines—sometimes even accidentally. U.S. Solicitor General Ted Olson contended that minors could stumble upon or intentionally enter 28,000 commercial porn websites. Also of worry is the Internet’s ability to facilitate the illegal dissemination of child pornography. And the ubiquity of Internet access has raised new social problems by introducing pornography into new settings, such as public libraries and the workplace.
Milestones in the development of Internet pornography law include the following.
- The Supreme Court established that obscenity is not protected by the First Amendment in Roth v. United States (1957), declaring obscenity to be “utterly without redeeming social importance.”
- After subsequent cases showed the difficulty of finding a conclusive definition of obsceni-ty, the Court restated its definition in Miller v. California (1973). It substituted a detailed three-part test ultimately to be used by each locality—the so-called “community standards” test.
- The Court ruled that child pornography is not a form of expression protected under the constitution in New York v. Ferber (1982). It has also upheld a state law prohibiting the possession and viewing of child porn in Osborne v. Ohio (1990).
- Seeking to control Internet porn, Congress first passed legislation in 1996. The Communications Decency Act (CDA) criminalized the dissemination over computer networks of obscene or indecent material to children. Immediately blocked from enforcement by the courts, it was ruled unconstitutional under the First Amendment in 1997.
- Seeking to update federal child pornography law for the Internet, Congress passed the Child Pornography Prevention Act (CPPA) of 1996. Among other features, the law criminalized any visual depiction that “appears to be” child pornography, including so-called virtual porn created by computer. After lower courts struck down provisions of the statute, the U.S. Supreme Court agreed to hear an appeal. In Ashcroft v. Free Speech Coalition, (2002), the high court agreed with the Ninth Circuit that two key provisions of the CPPA were unconstitutionally overbroad (affecting both legal and illegal speech) under the First Amendment. The law was struck down.
- Congress responded by passing the Child Online Protection Act (COPA) of 1998. More narrowly written, COPA took aim at commercial online porn sites that disseminate material to minors. And, anticipating constitutional objections, it mandated that criminal cases brought under it would be tried according to contemporary community standards. The law set stiff penalties of $150,000 for each day of violation and up to six months in prison. However, COPA suffered similar setbacks in court after the ACLU and several non-pornographic online websites successfully contested it, first in federal district court in Philadelphia and then before the U.S. Court of Appeals for the 3rd Circuit. As before with the CDA, the Justice Department continued to appeal; this time, it argued that online porn is even more readily accessible to children and thus in need of urgent control. However, in 2004, the U.S. Supreme Court rejected Congress’ version of the Child Online Protection Act (COPA), in that it did not sufficiently protect the rights of adults to consensually view sexually explicit material on the Internet. Ashcroft v. ACLU, No. 03-0218 (2004). The Court, by a close 5-4 vote, concluded that the government had not shown why less-restrictive alternatives (such as software filters) could not be equally or more effective. The high court noted that filtering software had come a long way in just five years, and that two less restrictive laws had passed muster, one prohibiting misleading domain names, and another creating a child-safe kids.domain, and that these and similar actions may be sufficient to protect children. The case was remanded to a lower court for further investigation and action.
- In response to this, the Department of Justice began issuing subpoenas to Google, Yahoo, and MSN, to obtain one million random Web addresses and records of all searches for a one-week period in order to prove the superiority and necessity of COPA, and the ineffectiveness of filtering technology.
As these federal cases suggest, recent outcomes have favored those who regard federal control of Internet pornography as censorship. That does not mean the issues are settled, as indeed partisans on both sides of the issue eagerly anticipate forthcoming proposed legislation and judicial review thereof..