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The Right Result; The Wrong Reason

By Marjorie Heins

On June 29, the Supreme Court effectively struck down the Child Online Protection Act, or "COPA." It was the right result, but for the wrong reason.

It was the right result because the Court stopped a repressive Internet censorship law from going into effect. It was the wrong reason because the Court endorsed a technology with the potential for far greater censorship than COPA or similar laws - Internet filters.

COPA makes it a crime to distribute material that's "harmful to minors" on the World Wide Web. It defines "harmful to minors" in the same vague terms as our current obscenity law - only adjusted downward for teenagers and kids. That is, COPA bans speech about sex that appeals to the "prurient interest" of minors, is "patently offensive with respect to minors," and "lacks serious literary, artistic, political, or scientific value for minors."

Justice Anthony Kennedy, writing for the Court majority, started with the assumption that COPA is justified because of the government's "compelling interest" in protecting youngsters from sexually explicit speech. But, he said, the government hadn't met its burden of showing that COPA is the "least restrictive means" to achieve this compelling goal. Internet filters, Kennedy opined, are more effective than COPA in blocking minors' access to sexual material. And they are less restrictive of adults' First Amendment rights to read and view Web sites with sexual content.1

Filters are less restrictive, in part, because nobody goes to jail for failing to use them. But their use is not always voluntary. Indeed, last year, as Kennedy noted, the Supreme Court upheld a law mandating filters in schools and libraries that receive federal aid for Internet connections.2 And, equally important, filters are notorious for mindless overblocking. With well over a billion Internet sites, many of them changing daily, no filtering company can actually review even a tiny fraction of the Web. As a result, filters must rely on mechanistic key words and phrases that end up blocking tens of thousands of totally innocent sites. The examples range from pussy willows to Beaver College, magna cum laude to the Web site of Congressman Dick Armey.3

Equally troubling as its intoxication with filtering technology, the Court majority said not a word about the vagueness and subjectivity of such standards within COPA as "patently offensive" or "serious value." Only Justices John Paul Stevens and Ruth Bader Ginsburg, in a concurring opinion, pointed out that "the line between communications which 'offend' and those which do not is too blurred to identify criminal conduct." They added that "attaching criminal sanctions to a mistaken judgment about the contours of the novel and nebulous category of 'harmful to minors' speech clearly imposes a heavy burden on the exercise of First Amendment freedoms."4

The dissenters - four of them - were led by Justice Stephen Breyer, who wanted to uphold COPA by interpreting it narrowly, to apply only to pornography. But, to paraphrase another Supreme Court case - the famous decision in which the Court upheld a war protester's right to wear a jacket bearing the legend "Fuck the Draft"5 - one person's pornography can be another's visual art, poetry, or sex education. The Web sites challenging COPA, which included Condomania, Androgyny Books, Riotgrrl, and, argued that the law's definition of "harmful to minors" could apply to much of their content.

Which leads to another void in the justices' reasoning. Since we can't even identify what might run afoul of a "harmful to minors" ban - that is, what might be considered "patently offensive" or lacking in "serious value" - how can we know what, if any, material is actually "harmful"? The Court's (and Congress') continuing assumption that sexually explicit material harms young people is based not on evidence but on widely shared and rarely examined beliefs - that children are sexual innocents, that teenagers' hormonally induced impulsiveness can be controlled through the denial of sexual stimuli, and that the way to teach kids about sexual responsibility is through censorship rather than education.

Justice Breyer was the only one who actually addressed this question of presumed harm from sexual expression, although he did so unintentionally. Defending the "prurient interest" prong of the COPA definition, Breyer said that it is not really a problem constitutionally because it differs very little from nearly the same requirement in longstanding adult obscenity law. That is, young children do not normally respond to pornography, while "material that appeals to the 'prurient interests' of some group of adolescents or postadolescents will almost inevitably appeal to the 'prurient interests' of some group of adults as well."6

Without quite meaning to, Breyer thus acknowledged what we all know: that young children are not interested in explicit sexual information, while adolescents and postadolescents are, precisely because their hormones are stirring. Is their normal, age-appropriate interest in sexually arousing material harmful? Should they be strapped down instead, with the sorts of anti-masturbation devices that were once popular among parents and physicians, and that now are themselves generally agreed to be dangerous to psychological and sexual development?7

Amid their justified pleasure at winning this slim First Amendment victory, then, cyber-libertarians, readers, and publishers should be concerned that the Supreme Court - with the exception of Justices Stevens and Ginsburg - refused to acknowledge the fundamental unfairness and unworkability of a censorship standard that turns on such imponderable generalities as "patent offensiveness" and "serious value."

Equally important, this victory has dug us ever deeper into the Internet filtering trap - the embrace of a technological "fix" that, with its mechanistic, heavy-handed use of key words and phrases in place of context, nuance, and human judgment, censors far more speech, and far more irrationally, than even a vague criminal law. Magna cum laude graduates, fans of "Marsexploration," and lovers of "pussy willows" beware.

July 1, 2004

Clarification and Update: The Supreme Court decision was technically only the affirmance of a preliminary injunction against the implementation of COPA. The case was sent back to the lower court for trial. On March 22, 2007, after a full trial, the district court invalidated COPA on the grounds that it was vague and overbroad, and that voluntary use of Internet filters was a "less restrictive" way of shielding minors than a criminal law. See "COPA is Struck Down Yet Again." The Court of Appeals affirmed, and in January 2009, the Supreme Court sounded the death knell for COPA when it declined further review.

For more on the COPA case, see "Our Children’s Hearts, Minds, and Libidos" - What's at Stake in the COPA Case.


1. See Ashcroft v. American Civil Liberties Union, S.Ct. No. 03-218 (June 29, 2004), majority opinion by Justice Kennedy.

2. United States v. American Library Association, 539 U.S. 194 (2003).

3. See the lower court decision in the Internet filtering case, American Library Association v. United States, 202 F.Supp. 2d 401, 431-448 (E.D Pa. 2002); Commentary, Ignoring the Irrationality of Internet Filters, the Supreme Court Upholds CIPA.

4. Ashcroft v. American Civil Liberties Union, S.Ct. No. 03-218 (June 29, 2004), concurring opinion of Justices Stevens and Ginsburg, slip opinion at 2, 3.

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

6. Ashcroft v. American Civil Liberties Union, S.Ct. No. 03-218 (June 29, 2004), dissenting opinion of Justices Breyer, Rehnquist, and O'Connor, slip opinion at 4.

7. See the discussion in Marjorie Heins, Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (2001), pp. 21-23, 33-34.



The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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