Supreme Court Upholds Injunction Baring Enforcement of the Child Online Protection Act
On June 29, 2004, the Supreme Court ruled (5-4) in Ashcroft v. American Civil Liberties Union, 542 U. S. ____ that a District Court had properly enjoined (blocked) the enforcement of the Child Online Protection Act (COPA) because the law was likely unconstitutional.
This case is not that unusual. However, recent developments make this case noteworthy.
In 1973, in the case of Miller v. California, 413 U.S. 15, the Supreme Court announced the principles that have provided the basis for most obscenity legislation ever since. Basically the Court held that obscenity is not protected speech under the First Amendment, but that to be “obscene” the speech must appeal to the prurient interest, be patently offensive according to community standards, and that it must depict sexual conduct the prohibition of which is specifically defined by applicable law.
Non-obscene speech which is deemed harmful to minors can be restricted as to them, but not if the restrictions are overly broad (interfering with the right of adults to have access to such speech1). Ginsberg v. New York, 390 U.S. 629 (1968).
The advent of the internet has brought with it a proliferation of both obscene and non-obscene pornographic speech. Congress has sought to pass laws prohibiting the dissemination of such speech to minors, but without a lot of success.
In 1996 Congress passed the Communications Decency Act, which was intended to protect minors from obscenity and porno-graphy on the internet. But the Supreme Court struck down major portions of this law because it was not narrowly tailored to serve a compelling state interest and because less restrictive alternatives were available. Reno v. ACLU, 513 U.S. 844 (1997).
In 2004, in another attempt to regulate internet pornography, Congress passed the Child Online Protection Act [hereafter COPA]. This law imposes a fine of up to $50,000 and up to six months in prison for the knowing posting for “commercial purposes” of content that is “harmful to minors.” Material that is “harmful to minors” includes obscenity (as defined in the Miller case) and lewd nudity. The law provided an exemption from prosecution for those commercial purveyors who employ reasonable measures to restrict access to the material by minors (including the use of credit card numbers and adult access codes). This exemption is very broad.
Nevertheless, the Supreme Court still ruled that the statute “likely”2 amounts to an improper restriction on protected speech. The Court reasoned that since a less restrictive technological alternative exists to shield offensive materials from minors (filters), therefore the more restrictive measures enacted by COPA would not likely survive strict scrutiny by the Court.
Comment and Analysis
The fact that this was a 5-4 opinion, indicates that Congress almost succeeded in passing an internet pornography regulation law. The exemption provision is so broad, that it is difficult to envision a worthy purveyor of pornography that might be wrongfully prosecuted. Four of the Justices (the Chief Justice, Justice O’Connor, Justice Scalia and Justice Breyer) saw it that way. The case itself is still alive—the Supreme Court only addressed the injunction issues. But the ruling is clearly an indication that COPA will ultimately be struck down later.
Hiibel v. Sixth Judicial District Court of Nevada
On June 21, 2004, by a 5-4 ruling, the Supreme Court upheld a Nevada law that required individuals to stop and identify themselves in the course of investigatory stops under suspicious circumstances. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. ___ (2004).
The Supreme Court said that this brief interrogation is proper under Terry v. Ohio, 392 U.S. 1 (1968), and that the brief investigatory stop does not violate Hiibel’s Fourth Amendment rights to be free from unreasonable searches and seizures.
The Court said that the compelled disclosure of Hiibel’s name and identity presented no reasonable danger of incrimination, and that therefore the Nevada law did not violate the Fifth Amendment’s prohibition against compelling one to give incriminating testimony against oneself.
Since 1966, these brief “Terry stops” have been legal. However, until now, the Court has never resolved whether an individual can be charged and convicted, in a Terry stop situation, for refusal to disclose his name. We now have an answer: States can criminalize an individual’s failure to do this.
Missouri v. Seibert
On June 28, 2004, the Supreme Court ruled (5-4) that Ms. Seibert’s incriminatory testimony was inadmissible where the police intentionally withheld giving Ms. Seibert the Miranda warning prior to interrogating her, and where the police then used that information to get an incriminatory statement from Ms. Seibert in a second interrogation a short time later that was preceded by a Miranda warning.
Accordingly, the law now is that intentional delay by the state to give an accused the Miranda warning violates the rights of the accused, and can result in excluding testimony obtained thereby.
The facts of this case make the law a little less palatable. Ms. Seibert feared being charged with neglect in connection with the death of her son, afflicted with cerebral palsy, who died in his sleep. So Ms. Seibert then conspired with her sons and some friends to conceal the circumstances of her son’s death by burning down their mobile home, and causing an unrelated mentally ill 18-year-old young man to die in the fire, to give the appearance that Ms. Seibert’s son had not been left unattended. Ms. Seibert and company then carried through with the plan.
United States v. Patane
On June 28, 2004, the Supreme Court ruled (5-4) in United States v. Patane, 542 U.S. ___, that the failure to give Miranda warnings to a suspect does not require suppression of physical evidence obtained following voluntary statements by the suspect. Mr. Patane (a convicted felon) was convicted for unlawfully possessing a pistol.
Statements made by an accused who has been detained but has not received his Miranda warning is not admissible. (This is the exclusionary rule that operates pursuant to the law established in Miranda v. Arizona, 384 U.S. 436 (1966). But what about physical evidence found by the police as a result of statements made by an accused after his detention but before he was given the Miranda warning, and where the accused interrupted the police from giving the warning by stating that he knew his rights? In United States v. Patane, the Supreme Court ruled such physical evidence to be admissible.
This ruling seems inconsistent with the Court’s contemporaneous ruling in Missouri v. Seibert. The Justice who was the swing vote in these two cases is Justice Kennedy. In his concurring opinion in Patane, Justice Kennedy concluded that so long as the unwarned statements themselves were not introduced at trial, the physical evidence should be admissible On the one hand, this seems like splitting hairs.
On the other hand, so what? What does it hurt? Guilty people should have the freedom to say things that contribute to their prosecution for crimes.
1. It is this right of adults to have access to non-obscene pornography that leads to the invalidation of most laws aimed at protecting minors from exposure to pornography.
2. “Likely” is a key word here because the Court only addressed whether the statute is “likely” to be held unconstitutional later. Remember, this case is about an injunction, where the ACLU successfully asked the Court to block the enforcement of COPA until a final hearing because the law is “likely” to be held unconstitutional.
© 2006 C. Paul Smith
Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
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Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
or visit his website at www.jimmyandheather.com