Justice Breyer (joined by Chief Justice Rehnquist and Justice O’Connor) dissented in today’s Ashcroft v. ACLU. The Child Online Protection Act, he reasoned, was very narrow.
COPA doesn’t limit itself to unprotected obscenity (defined roughly as speech that appeals to the “prurient interest,” depicts sex in a “patently offensive” way, and lacks “serious value”). Rather, it requires that sites hide behind credit card checks (or similar screens that serve as proxies for age) any “harmful-to-minors” material, defined as speech that appeals to the “prurient interest” of minors, depicts sex in a way that’s “patently offensive” when displayed to minors, and lacks “serious value” for minors.
But Justice Breyer argued that the distance between these two is very small. In practice, Justice Breyer argued, the law only restricts “legally obscene material, and very little more.” In his view, “the addition of [the words ‘of minors’] to a definition that would otherwise cover only obscenity expands the statute’s scope only slightly.”
I’m not sure Justice Breyer is right; the law is so vague that it’s hard to tell. But if he is, then why is he complaining about the supposedly dire practical effects of striking down the law? (I understand complaining about purely theoretical questions, even if there’s little practically riding on the issue, but much of Justice Breyer’s argument seems to be focused on pragmatic considerations.)
After all, under Justice Breyer’s understanding of COPA, the government could achieve its goals just as well simply by enforcing obscenity law. Maybe obscenity law is not a “less restrictive” alternative (it could be more restrictive), but it should work just fine. COPA hardly seems a necessary addition to the government’s powers — which is part of the First Amendment test that he applies — if the government already has ample tools to fight the problem.
Justice Breyer actually alludes to the possibility of obscenity prosecutions by arguing that this decision may end up leading to more speech restriction, rather than less (some paragraph breaks added):
. . . [W]ill the majority’s holding in practice mean greater or lesser protection for expression? I do not find the answer to this question obvious.
The Court’s decision removes an important weapon from the prosecutorial arsenal. That weapon would have given the Government a choice — a choice other than “ban totally or do nothing at all.” The Act tells the Government that, instead of prosecuting bans on obscenity to the maximum extent possible (as respondents have urged as yet another “alternative”), it can insist that those who make available material that is obscene or close to obscene keep that material under wraps, making it readily available to adults who wish to see it, while restricting access to children. By providing this third option — a “middle way” — the Act avoids the need for potentially speech-suppressing prosecutions.
That matters in a world where the obscene and the nonobscene do not come tied neatly into separate, easily distinguishable, packages. In that real world, this middle way might well have furthered First Amendment interests by tempering the prosecutorial instinct in borderline cases. At least, Congress might have so believed. And this likelihood, from a First Amendment perspective, might ultimately have proved more protective of the rights of viewers to retain access to expression than the all-or-nothing choice available to prosecutors in the wake of the majority’s opinion. . . .
But under Justice Breyer’s description of COPA’s boundaries, the “middle way” still remains: The government can simply announce that it will start enforcing obscenity laws against all businesses that distribute obscenity in ways that are easily accessible to minors. Justice Breyer stresses that “harmful-to-minors” material is “legally obscene material, and very little more.” So the government policy would be nearly exactly what it could do with COPA.
(It’s possible, of course, that this might not be optimal for free speech, because once the government starts this narrow program of obscenity prosecutions, it will eventually start doing more. But that’s far from clear.)
Of course, some prosecutors might object that this middle way is harder than with COPA. The whole point of COPA, they might argue, is to shield children even from a good deal of pornography that’s protected as to adults, but inappropriate for children. But if they’re right, then Justice Breyer’s assurances about the narrow scope of COPA are mistaken.
So it seems to me that either Justice Breyer is right that COPA affects very little protected (i.e., nonobscene) speech — but then striking it down affects the government’s power to shield children very little. Or he is right that it’s a necessary tool for shielding children; but that would only be the case if COPA affects speech considerably more protected speech than he suggests.
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