Once Again, U.S. Supreme Court Thinks It Knows Better Than Congress

By Robert Peters
President of Morality in Media

Introduction

I would have been pleasantly surprised had the Supreme Court in Ashcroft v. American Civil Liberties Union upheld the Child Online Protection Act (COPA), a law intended to restrict children's access to commercial websites that distribute sex materials that are harmful to minors (i.e., obscene for minors). Minors are defined as children under age 17.

COPA prohibits the knowing posting, for commercial purposes, of World Wide Web content that is harmful to minors. Similar to the federal "dial-a-porn" law COPA provides an affirmative defense to content providers who restrict access to prohibited content by requiring a credit card or "any other reasonable measures that are feasible under available technology."

On June 29, the Supreme Court, rather than upholding COPA, affirmed the decision of the ACLU-minded Third Circuit Court of Appeals in Philadelphia and remanded the case to the federal district court in that city to determine if there are less restrictive alternatives to COPA. In so doing, the Supreme Court noted that in the earlier proceeding granting a preliminary injunction, the "primary alternative" considered by the District Court was "blocking and filtering software."

In 1997, the Court in Reno v. American Civil Liberties Association also invalidated the Communications Decency Act (CDA), intended to restrict children's access to indecency on the Internet. In the CDA case, the Court stated in part:

In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purposes that the statute was enacted to serve… the District Court found that 'despite its limitations, currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material…will soon be widely available.'

As a result of the Supreme Court's apparent belief that screening technology may be a "less restrictive means" to protect children from Internet pornography, there has been no legal protection for children against the explosion of Internet pornography since 1996, when Congress enacted the Communications Decency Act.

Parental Use of Screening Technology

Parental use of screening technology is, of course, an important part of the solution-especially for younger children. But as children get older they have more and more opportunities outside the home to access the Internet, including at a friend or relatives home, at work or school, or at a library or computer cafe. Children have access not only to laptops and desk computers, but to palm computers and wireless phones connected to the Internet. Tech-savvy children can also circumvent screening technology, and no screening technology blocks access to all pornography.

Furthermore, for a variety of reasons including cost of blocking technology and parental ignorance, naiveté and indifference, many parents don't use screening technology. In Ginsberg v. New York, the Supreme Court held that two governmental interests justified the limitations that New York's harmful to minors law placed upon the availability of "sex materials" to minors:

The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility… The State also has an independent interest in the well-being of its youth… "[T]he knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them."

On July 8, 2004, the New York Post reported that the "New York City school system is grappling with a growing proportion of immigrant students whose primary language is not English. About 15 percent of students are learning English." All of these children will be introduced to computers. Many of their parents, however, are not now, and may never be, in a position to adequately supervise their children's use of computers.

Children, in large numbers, are being exposed to Internet obscenity

Screening technology has been aggressively promoted by government, news media, telecommunications giants, special interest groups and corporations that profit from its sale. The following surveys (among others) show, however, that screening technology, alone-and, in particular, parental use of screening technology-has not been effective in blocking children's access to Internet pornography. One can only wonder why the Supreme Court in Ashcroft refused to take judicial notice of that fact.

• According to a 1999 TIME /CNN teen poll, 44% of teens ages 13 to 17 said they had "seen websites that are X-rated or have sexual content."
  
• According to a 1999 Yankelovich poll, 58% of teens ages 13 to 17 said they visited websites "containing pornography, offensive music lyrics, gambling or messages of violence and hate." Among teens with lower grades (C average or less) or poor attendance, the percentage rose to 78%.
  
• According to a 2000 Newsweek poll 21% of teens have looked at something on the Internet "that they wouldn't want their parents to know about."
  
• According to a June 2001 Pew Internet & American Life survey, 15% of online teens ages 12 to 17 "say they have lied about their age to gain access to a Web site-an action that is often required in gaining access to pornographic sites. A fifth of all boys (19%) ages 12 to 17 have done this, compared to 11% of teen girls. One quarter of boys ages 15 to 17 have said they were older than they are in order to gain access to a Web site. Teens with several years of Internet experience are more likely…to have lied about their age to gain access to a Web site."
  
• According to a December 2001 Kaiser Family Foundation study, 70% of teens ages 15-17 had "accidentally come across" pornography while on the Internet. Of these teens, 55% said "being exposed to pornography would have a serious impact on kids under 18."
  
• According to the February 2002 Nielsen/NetRatings, "nearly 16 % of visitors to adult-oriented Web sites were under the age of 18."
  
• According to a 2002 Girl Scout Research Institute survey, "most girls (ages 13 to 18) say they can get around parents' rules…Nearly half say they're able to…get into a porn site (42%)." According to an article about the same study published in the NY Daily News "the girls report they also get unsolicited e-mails with porn links and often accidentally go to porn sites when looking for legitimate teen sites."
  
• According to a study published in the March 2003 (conducted by researchers at the University of New Hampshire's Crimes Against Children Research Center), in the course of a year 25% of children ages 10-17 who use the Internet regularly are exposed involuntarily to pornography (defined to include only pictorial material).
  
• According to an Australian study released in March 2003, 84% of boys ages 16 and 17 and 60% of girls ages 16 and 17 had "stumbled on" Internet sex sites and 38% of the boys "admit to having deliberately searched the Internet for pornography."
  
• According to an article in People magazine, all 42 students in an eighth grade class at Riverdale Public School in New Jersey raised their hands when a visitor asked, " Have you seen Internet pornography."
  
• According to a British study, the proportion of 9 to 19-year-olds who reported seeing pornography online (57%) "is nearly four times greater than their parents believe. Only 16% of parents think their children have seen it."

  What minors see when they visit Internet porn sites

  I spoke with a mother who caught her pre-teen son using a computer, located in a common area of the home, to access porn sites. Having looked at some of the sites he visited the mother said, "I was naïve about the Internet; I thought you had to pay for pornography."

  The mother's discovery is supported by a survey described in the report Youth, Pornography and the Internet,

  In a survey of adult-oriented commercial sites, the majority of adult-oriented sites (about 74%) were found to display adult content on the first page (accessible to anyone who visits the page, often through the display of sexually explicit banner ads to other sites…about 25 percent employed practices that hindered the user from leaving the site (e.g., mousetrapping) and only 3 percent required a credit card or other 'adult check' to proceed past the first page of the site (that is, most sites allow the user to take a 'free preview' in which some additional content is provided).

  The above survey is supported by the experience of two retired law enforcement agents who follow up on citizen complaints (most of which are the result of "porn spam") submitted to MIM's Obscenity Crimes Organization website. Nearly all of the porn sites the retired agents observe depict hardcore sex free of charge.

  To give the reader some idea of the variety of hardcore sex that children can observe free of charge on the Internet, examples of promotional material that the agents observed on pornographic websites reported to ObscenityCrimes.org are reprinted here.

  • * "HOT YOUNG TEENS WITH DOGS, HORSES, COWS, CHICKEN, SHEEP, SNAKES, AND MORE…"
  • * "Next time you need a leak, don't use a urinal, use a urinal slut"…"The original human piss trough."
  • * "RAPED SCHOOL GIRLS"…"VIRGIN GIRLS RAPED"…"RAPE AN INNOCENT GIRL"
  • * "EXPLOITED BITCHES"…"Sometimes even the sweetest girls can really be disgusting bitches."
  • * "WATCH HOW BEAUTIFUL WOMEN ARE HELD DOWN BY FORCE, HUMILIATED AND DEGRADED"
  • * "REAL FAMILY INCEST SITE"…"THE BEST INCEST SITE IN THE ADULT WEB"
  • * "Barely Legal Teens in Live Sex Shows"…"INNOCENT BABYSITTERS"…"YOUNG SLUTS"
  • * "Teen Toilet Sex"…"Rape & Torture Porn"…"Scat [feces] Teen Bondage…"

  The adverse effects of pornography

  For those who need convincing that the floodtide of pouring into our nation's communities and homes is adversely affecting children, a good place to begin is the ObscenityCrimes.org website. Click to the Help for Parents, Help for Porn Victims, and Porn Problem and Solutions pages for articles and links to other resources.

  For the record here, however, I do include a quote from Dr. Victor B. Cline, a clinical psychologist and Professor Emeritus at the University of Utah, and from Dr. Mary Anne Layden, Director of Education, Center for Cognitive Therapy at the University of Pennsylvania. First, from Dr. Cline:

  Some of my porn addict patients inform me that the Internet has three major advantages in feeding their addictive sexual illnesses…It's easily Accessible, Affordable and Anonymous. I have had boys in their early teens getting into this wasteland with really disastrous consequences. They told me they actively search for porn on the Internet, keying in on such words as sex, nudity, pornography, obscenity, etc. Then, once they have found how to access it, they go back again and again - just like drug addicts.

  Now from Dr. Layden:

  The messages of Internet pornography are psychologically toxic, untrue, difficult to undo and are shaped by individuals whose goals are to make money without concern for the consequences. You wouldn't allow the drug pusher on the corner to come into your home, school or library and teach your child about medication. Why would you allow the sex pusher on the Internet to come into your home school or library and educate your child about sexuality? We owe it to our youth to give them the best, protect them from the worst, and to use our wisdom, education and experience to decide which is which.

  Dr. Layden also noted that the pornographic images children receive "are permanently implanted in the brain and the unhealthy messages these images support are not easily talked away."

  Supreme Court's Playboy decision

  In May 2000, the Supreme Court in U.S. v. Playboy, overturned a federal law that would have required cable TV operators to either completely scramble the signals for pay porn channels (so that the signals wouldn't "bleed" into TV sets of nonsubscribers) or to air the imperfectly scrambled signals only from 10 p.m. to 6 a.m.

  The signal bleed law seemed reasonable. Not only was the law restricted to indecent content, it applied only to channels "primarily dedicated to sexually explicit programming." The Supreme Court had said in previous cases that similar content was at the "periphery of First Amendment concern."

  It was technologically possible for cable operators to comply with the signal bleed law. Many cable systems already scrambled their signals. Other systems voluntarily restricted "adult programming" to the hours of 10 p.m. to 6 a.m. Costs and profits were an issue, but in City of Renton v. Playtime Theatres, the Court said, "The inquiry for First Amendment purposes is not concerned with economic impact."

  Unlike the law at issue in Sable Communications v. FCC, involving a total ban on indecent telephone communications, the signal bleed law did not ban the "expression." It said, in so many words, that the pornographic "garbage" must either be packaged so that it doesn't stink up someone else's home or be put on the street (i.e., the cable system) only after 10 p.m.

  The question of whether children can be harmed by exposure to indecent and harmful to minors material appeared settled by the Court. A description of some of the programming that was bleeding uninvited into homes can be found in the Government's brief in the Playboy case:

  The Spice network [depicts such] activities as 'female masturbation/external,' 'girl/girl sex,' 'oral sex/cunnilingus,' 'explicit language,' 'wide shot penis/flaccid,' and 'wide shot' vagina.'... [P]rogramming on the even more explicit Spice Hot network depicts 'female masturbation with penetration,' 'male masturbation,' 'medium shot penis/erect,' 'oral sex/fellatio,' 'vaginal penetration/objects,' 'vaginal penetration/penis,' and 'vaginal penetration/tongue.'

  One would have also thought that a majority of the Justices would have come down on the side of the American people, children, and decency when balancing the claimed right to cablecast porn, 24 hours a day, into homes that didn't subscribe to it against (1) the "individual's right to be left alone" in the home (2) the government's interest in the "'well-being of its youth' and in supporting 'parents claim to authority in their own household'" and (3) the "right of the Nation…to 'maintain a decent society'" a majority of the Justices would have come down on the side of the American people, children, and decency.

  The Supreme Court, however, can no longer be counted on to defend the home, children, considerations of decency and morality, separation of powers, or its own precedent against the relentless assaults of pornographers and radical libertarians.

  "The distinction between laws burdening and banning speech is but a matter of degree," wrote Justice Kennedy, who delivered the opinion of the Court in Playboy. "The government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans." He added, "It is rare that a regulation restricting speech because of its content will ever be permissible." This means that the Court now applies the same nearly-impossible-to-meet test it devised for laws that would ban speech (e.g., "hate speech") from the Internet to a law like COPA that is intended to restrict children's access to obscene for minors material on the Internet-because COPA, in the process of protecting kids, incidentally "burdens" adult access to such material.

  In response to the majority's conclusion that Government "failed to establish a pervasive, nationwide problem…" Justice Breyer, dissenting, said

  The majority first concludes that the Government failed to prove the seriousness of the problem -- receipt of adult channels by children whose parents did not request their broadcast. This claim is flat-out wrong. For one thing, the parties concede that basic RF scrambling does not scramble the audio portion of the program. For another, Playboy itself conducted a survey of cable operators who were asked: "Is your system in full compliance with Section 505 (no discernible audio or video bleed)?" To this question, 75% of cable operators answered "no." Further, the Government's expert took the number of homes subscribing to Playboy or Spice, multiplied by the fraction of cable households with children and the average number of children per household, and found 29 million children are potentially exposed to audio and video bleed from adult programming. Even discounting by 25% for systems that might be considered in full compliance, this left 22 million children in homes with faulty scrambling systems. And, of course, the record contains additional anecdotal evidence and the concerns expressed by elected officials, probative of a larger problem. I would add to this empirical evidence the majority's own statement that "most cable operators had 'no practical choice but to curtail'" adult programming by switching to nighttime only transmission of adult channels. Ante, at 4 If signal bleed is not a significant empirical problem, then why, in light of the cost of its cure, must so many cable operators switch to night time hours?... …And if, given this logical difficulty and the quantity of empirical evidence, the majority still believes that the Government has not proved its case, then it imposes a burden upon the Government beyond that suggested in any other First Amendment case of which I am aware.

  As far back as May 1983, the (then monthly) MIM Newsletter reported:

  Following is typical of letters received in the MIM offices…, this from Norfolk, Virginia: 'We have a Playboy Channel that is not scrambled very well. I have seen a great deal of nudity just changing the stations. I have complained to my cable company and they said they would scramble it better. I watched the channel the other day to see if they had, and it was still so clear that I could follow the programming without subscribing to it…

  During the 1990s, I personally responded to many citizen complaints about cable porn "signal bleed." I also wrote an article, "Hardcore Pornographic Films on Your Cable TV System." The article begins with the following:

  During the last two years, MIM has received many calls from individuals complaining that the unordered signal for...pornographic films was inadequately scrambled and could be viewed or heard on their cable TV sets…Many callers were parents, and in some instances children had been exposed to the films. When the individuals complained to their local cable operators, they were told they could obtain a device to block the offending channel. Such devices, however, didn't always block the signal.

  We received many calls because one of the nation's largest cable companies began to aggressively promote pay porn channels on cable systems it owned nationwide. Not surprisingly, other major cable companies followed suit. In the 1980's, cable companies were selective about where they offered porn because they feared obscenity prosecutions.

  After Playboy filed a lawsuit in federal court to block implementation of the new signal bleed law, I contacted the Justice Department to see if the information MIM had been compiling over the years might be of help in defending the law. A Justice Department attorney who was handling the case was more than happy to get the information. In some instances, however, there was no way to track down the person who complained about signal bleed. Presumably, other potential witnesses were unwilling or unable to testify. The potential benefits of obtaining a witness also had to be weighed against budgetary and time limitations.

  In contrast, some members of Congress were in all likelihood exposed to signal bleed or to news reports about the bleeding problem. Some members were contacted by constituents or special interest groups familiar with the problem. The fact that the signal bleed law was introduced in the Senate by Trent Lott, a Republican from Mississippi, and Diane Feinstein, a Democrat from California, was another indication that there was a widespread problem.

  Despite this, it was the "facts" determined by a presumably overworked and perhaps ideologically biased trial court judge - who had to depend in large measure on partisan and perhaps "out gunned" or unethical trial attorneys - that the High Court viewed as "truth."

  This is not to say that Congress always gets it right, but to presume that a district court judge is better at getting it right than both Houses of Congress and the President borders on the ludicrous. I am also unaware of a Constitutional provision requiring Congress to jump through whatever evidentiary hoops the Supreme Court decides are appropriate in order to legislate.

  The Playboy majority also faulted the Government for failing to prove that a "less restrictive alternative"-i.e., "a well-promoted blocking provision"-was ineffective.

  What did the Playboy majority have in mind-a field test in cooperation with cable operators? If so, what was to be the goal-making a sufficiently large percentage (whatever that might be) of parents aware of blocking or motivating that percentage to utilize blocking? What if it took years before "a well-promoted blocking provision" had the desired effect? What if a "well-promoted blocking provision" also had the effect of making more children aware of the porn?

  Was the Playboy majority unaware that blocking technology had existed for many years? According to an article:

  Cable industry officials also say that with the availability of lockout devices, subscribers can shield their children from objectionable shows…The devices come in varying degrees of sophistication an they range in price from $15 to $25…Most cable systems do not publicize lockout boxes but have them available on request…But, according to cable officials, few subscribers actually make use of them. At Gill Cable in San Jose, Calif., for example, 300 families out of 96,000 subscribers…obtained the 'parental key,' or lockout device, that is offered free…In New York, Governor Mario Cuomo signed into law last July a measure that requires not only that boxes be offered to all customers at 15% over the manufacturing cost but also that cable companies prominently advertise the availability of the devices.

  As far back as November 1984, the MIM Newsletter reported, "Playboy Channel is planning a lockout box that will use a rabbit-head key and sell for under $10. The boxes will be tested soon....If successful, Rainbow Programming, which markets Playboy...will begin advertising the lockout box."

  Why did the Playboy majority discount the holdings in Information Providers Coalition for Defense of the First Amendment v. FCC and in Dial Information Services v. Thornburgh, that voluntary use of blocking technology would not protect children from dial-a-porn? In the Information Providers Coalition case, the 9th Circuit stated:

  For its part, the Coalition urged the Commission to adopt an alternative defense…based on the availability of central office blocking….[T]he Coalition…urged the Commission to conclude that dial-a-porn providers should not be prosecuted under section 223 if they operated in areas where telephone subscribers may ask local carriers to block calls from their homes to the information services….The Commission concluded that blocking alone would be insufficient to achieve realistically the goal of the statute: the protection of children….Further, it said blocking does not prevent access from unblocked phones….The Commission noted that only a small number of phones were likely to be blocked through the central office system….We are satisfied that substantial evidence supports this finding…

  In the Dial Information Services case, the 2nd Circuit stated:

  It seems to us that voluntary blocking would not even come close to eliminating as much access of children to dial-a-porn…as would the pre-subscription requirement...Blocking has been available for over two years in the New York area, but only four percent of the 4.6 million residential telephone lines in the area having access to the 970 prefix assigned by the telephone company for adult messages have been blocked.…Even if voluntary blocking is assumed to be the least restrictive means of accomplishing the congressional purpose, it is clearly not an effective means.

  In response to the majority's conclusion that Government failed to demonstrate the absence of a less restrictive alternative, Justice Breyer, dissenting, said in part:

  …Unlike the majority, I believe the record makes clear that § 504's opt-out is not a similarly effective alternative. Section 504 (opt-out) and § 505 (opt-in) work differently in order to achieve very different legislative objectives. Section 504 gives parents the power to tell cable operators to keep any channel out of their home. Section 505 does more. Unless parents explicitly consent, it inhibits the transmission of adult cable channels to children whose parents may be unaware of what they are watching, whose parents cannot easily supervise television viewing habits, whose parents do not know of their § 504 "opt-out" rights, or whose parents are simply unavailable at critical times. In this respect, § 505 serves the same interests as laws that deny children access to adult cabarets or X-rated movies... …. The record, moreover, sets forth empirical evidence showing that the two laws are not equivalent with respect to the Government's objectives. As the majority observes, during the 14 months the Government was enjoined from enforcing § 505, "fewer than 0.5% of cable subscribers requested full blocking" under § 504. Ante, at 11… …. …Section 504's opt-out right works only when parents (1) become aware of their § 504 rights, (2) discover that their children are watching sexually-explicit signal "bleed," (3) reach their cable operator and ask that it block the sending of its signal to their home, (4) await installation of an individual blocking device, and, perhaps (5) (where the block fails or the channel number changes) make a new request. Better notice of § 504 rights does little to help parents discover their children's viewing habits (step two). And it does nothing at all in respect to steps three through five… Further, the District Court's actual plan for "better notice" -- the only plan that makes concrete the majority's "better notice" requirement -- is fraught with difficulties. The District Court ordered Playboy to insist that cable operators place notice of § 504 "inserts in monthly billing statements, barker channels . . . and on-air advertising." But how can one say that placing one more insert in a monthly billing statement stuffed with others, or calling additional attention to adult channels through a "notice" on "barker" channels, will make more than a small difference? …. Of course, it is logically possible that "better notice" will bring about near perfect parental knowledge (of what children watch and § 504 opt-out rights), that cable operators will respond rapidly to blocking requests, and that still 94% of all informed parents will decided not to have adult channels blocked for free. But the probability that this remote possibility will occur is neither a "draw" nor a "tie." Ante, at 14. And that fact is sufficient for the Government to have met its burden of proof.

  Supreme Court's Ashcroft v. ACLU decision

  The reader may wonder why so much space has been devoted to the Playboy case. The answer is simple. The Supreme Court's Playboy decision in 2000, invalidating the cable TV signal bleed law , and Ashcroft v. ACLU in 2004, invalidating COPA, were both decided on 5-4 votes, with Justice Kennedy writing both opinions, joined by the same four Justices. In Ashcroft v. ACLU, Justice Kennedy wrote:

  COPA presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote the use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties. The closest precedent on the general point is our decision in Playboy Entertainment Group. Playboy Entertainment Group, like this case, involved a content-based restriction designed to protect minors from viewing harmful materials. The choice was between a blanket speech restriction and a more specific technological solution available to parents who chose to implement it. Absent a showing that the proposed less restrictive alternative would not be as effective, we concluded, the more restrictive option preferred by Congress could not survive strict scrutiny…In the instant case, too, the Government has failed to show, at this point, that the proposed less restrictive alternative will be less effective. [Emphasis supplied]

  There are at least two problems with the majority analysis in Playboy and Ashcroft. First, the majority apparently assumes that if parents possess the capability to address the problem, they will act on that knowledge. But if they don't act, government must still "butt out." That flies in the face of both common sense and the Court's holding in Ginsberg, that, "The State also has an independent interest in the well-being of its youth…."[T]he knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation…"

  In the second place, the majority apparently assumes that if parents block a child's access to pornography after a problem is discovered, there is no problem. (The majority surely realizes that humans often do not act "preventively.") That flies in the face of both common sense and an observation made by Justice Stevens in the Court's Pacifica decision, "To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow."

  As noted above, I spoke with a mother who caught her pre-teen son using the family computer-stationed in a common area-to access porn sites. The mother had not installed screening technology because, in her words, "I was naïve about the Internet; I thought you had to pay for pornography." The mother subsequently installed technology, but the damage was done. As a mother put it in a published article:

  It was a huge heart break for me to view the sites my son had seen. The pornographers stole my son's innocence and the horrible part is it happened in my own home! He saw more perverted sex on those sites than I have ever seen in my 51 years of living.

  It would also appear that in grounding the Ashcroft v. ACLU decision in the Playboy decision, the Ashcroft majority ignored two significant differences between cable TV and the Internet.

  Apart from the reality that (1) parents may not discover a TV bleeding problem until after a child has been exposed to porn, (2) the problem may not be promptly fixed after blocking is requested and (3) some parents won't block the signal even after the problem is discovered, it is possible to solve most of the cable TV signal bleed problem with technology. That is because most children do most of their TV watching at home and because all pay porn channels can be blocked.

  With the Internet, however, many children spend much of their time connected to the Internet (or in the presence of other children connected to the Internet) outside the home. Parental use of screening technology on home computers cannot prevent children from stumbling into Internet porn or purposefully seeking it out, when they are away from home.

  Internet screening technology also does not block all porn sites. In this respect computer porn is more like the dial-a-porn (where restrictions on indecent messages were upheld) than cable porn. As the 9th Circuit noted in the Information Providers Coalition case:

  Southwestern Bell explained that central office blocking…would not impede long distance calls to adult services.…The Ameritech Operating Companies disclosed that their own blocking capability…would not prevent calls to other area codes…Bell South and Pacific Bell said that the Coalition's plan was not realistic because it depended upon an incorrect assumption that all adult services would be placed on a single local exchange.

  Since the Ashcroft majority grounded its decision in the Playboy case, involving television, one also wonders why the majority did not take judicial notice of surveys and news stories indicating that despite all the publicity surrounding the V-Chip, few parents use it. For example, a July 24, 2001 Kaiser Family Foundation Release reported that "despite high levels of concern about children's exposure to TV sex and violence, just 17% of parents who own a V-Chip-or 7% of all parents-are using it to block programs with sexual or violent content." A Kaiser study published on September 23, 2004 found that 15% of all parents have used the V-Chip.

  The Court in Ashcroft v. ACLU makes much of the fact that COPA, standing alone, can not completely protect children from Internet porn because COPA doesn't apply to websites located overseas. However Justice Breyer explains in his dissent, neither does screening technology, standing alone, "…solve the 'child protection' problem."

  Filtering software, as presently available, does not solve the 'child protection' problem. It suffers from four serious inadequacies that prompted Congress to pass the legislation instead of relying on its voluntary use. First, its filtering is faulty, allowing some pornographic material to pass through without hindrance… …. Second, filtering costs money. Not every family has the $40 to install it….Third, filtering software depends upon parents willing to decide where children will surf the web and able to enforce that decision. As to millions of American families, that is not a reasonable possibility. …. Fourth, software blocking lacks precision, with the result that…it blocks a great deal of material that is valuable…

  Our nation's entertainment media are currently engaged in a "full court press" to curb copyright violations on the Internet-through education (which includes "educating" parents about their responsibilities) and technology and law. To protect children from Internet pornography, education, and technology (filters and monitors), and law will also be necessary.

  There is also something troublesome about the Supreme Court's attempt to condition the exercise of Congress's power to protect children from Internet porn on whether other nations do their part. Presumably, if the U.S. gets serious about curbing obscenity here, most other nations will do what they can to curb obscenity within their own borders. But if some other nations refuse, does that mean Congress is helpless to address the problem within U.S. borders?

  If so, shouldn't the same rationale apply to the entertainment media's efforts to curb copyright violations? Clearly, much of the infringement problem is international.

  Concluding thoughts

  After the Court's Playboy decision, I was asked what the likely effect would be. I first said that while it would be a mistake to put the Supreme Court in a box Justice Kennedy, who delivered the opinion of the Court in the Playboy case, did write: "It is rare that a regulation restricting speech because of its content will ever be permissible."

  I then said that it would, therefore, be a fair assessment to say that the majority's decision will make it difficult, if not impossible, for government to take effective steps to shield children from sex material on TV or the Internet unless the material is obscene for adults.

  Clearly the Constitution, as our nation's founding fathers understood the document and as the Supreme Court itself understood it for almost 200 years, was not intended to cripple government's power to protect children or society from obscenity and indecency. As the Supreme Court noted in Roth v. United States, "[E]xpressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press."

  I would add that in Roth, the Court enunciated a definition of obscenity - i.e., "material which deals with sex in a manner appealing to the prurient interest" This definition would have allowed government to ban for adults the pornographic programming that the cable TV scrambling law attempted to restrict for the purpose of protecting children.

  So too, in Near v. Minnesota, the Court stated:

  "'In the first place, the main purpose of such constitutional provisions [i.e., freedom of speech and press] is "to prevent all such previous restraints upon publications as had been practiced by other governments" and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.' "But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public. "On similar grounds, the primary requirements of indecency may be enforced against obscene publications."

  Our nation's founding fathers viewed the First Amendment within a framework of ordered liberty-not as a license to publish pornography, to strip naked in public places for the purpose of sexually arousing patrons, or to commercially distribute material harmful to minors without any legal obligation to adopt sensible measures to restrict children's access.

  Many among our nation's secular elite now espouse a radically different view of the First Amendment, and they have every right to do so. What they don't have a right to do is enlist accommodating Supreme Court Justices to effectively amend the First Amendment by means of specious decisions. The power to amend is reserved to the people and their representatives.

  Admittedly, there is often a fine line between properly interpreting a Constitutional provision and in effect amending it to reflect the Justices' personal preferences or ideologies, irrespective of the history of a provision, the will of the American people, common sense and the Court's own precedent.

  But if that line no longer exists and Justices can effectively amend various provisions in the Constitution to reflect the Justices' own views (and, in the process, to "sit in judgment" over a wider and wider array of legislative and executive branch functions), then ours is no longer a government of the people, by the people and for the people, as Lincoln aptly put it.

  What we have instead is a judicial oligarchy accountable to no one. The official amendment process is simply too cumbersome to be an effective check on a Court that is now a law unto itself and that is ever changing the meaning of our nation's new "living" Constitution.

  I would add finally that many of the Court's First Amendment problems could be avoided by the exercise of great restraint in cases involving facial challenges to necessary and reasonable laws because of perceived overbreadth or vagueness problems. Freedom of speech and press is indeed a "fundamental" right but so is the right to live and raise children in a safe, healthy and decent society. Increasingly, however, the Court's libertarian Justices foolishly ignore the warning enunciated in Columbia Broadcasting System v. Democratic National Committee:

  "Thus, in evaluating the First Amendment claims….we must afford great weight to the decisions of Congress…Professor Chafee aptly observed: 'Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The Amendment should be interpreted so as to not cripple the regular work of government.'"

  FOOTNOTES

  1. Ashcroft v. ACLU, 124 S.Ct. 2783 (2004).
  
  
  2. 47 U.S.C. § 223 (2003).
  
  
  3. 47 U.S.C. § 231 (1998).
  
  
  4. Ashcroft, 124 S.Ct. at 2792.
  
  
  5. Reno v. ACLU, 521 U.S. 844 (1997).
  
  
  6. Id. at 874-77 (emphasis added).
  
  
  7. Ginsberg v. New York, 390 U.S. 390, 639-40 (1968) (emphasis added).
  
  
  8. Carl Campanile, Poverty Figures Rocket in N.Y. Public Schools, NEW YORK POST, July 8, 2004, at 2.
  
  
  9. Daniel Okrent, Raising Kids Online, TIME MAGAZINE, May 10, 1999.
  
  
  10. Rita Ciolli, Teens; Unseemly Web Visits, NEWSDAY, Sept. 7, 1999, at A17.
  
  
  11. Sharon Begley, A World of Their Own, NEWSWEEK, May 8, 2000, at 56.
  
  
  12. Amanda Lenhart, Teenage Life Online, Pew Internet & American Life, June 20, 2001, at http://pewinternet.org.
  
  
  13. Henry J. Kaiser Family Found., Kids & Media @ the New Millennium, at http://kff.org/entmedia/1535-index.dfm (last visited Mar. 5, 2005).
  
  
  14. Nielsen/Net Ratings, (Feb. 2002), cited at http://www.obscenitycrimes.org/espforparents/MinorsAndNetporn.cfm, (last visited Mar. 5. 2005).
  
  
  15. Karen Thomas, Teen Girls Know Their Way around the Net, Their Parents, USA TODAY, Feb. 13, 2002, at B13.
  
  
  16. Michelle Megna, Safety Net, New York Daily News, Mar. 3, 2002, at 6.
  
  
  17. Kimberly J. Mitchell, The Exposure of Youth to Unwanted Sexual Material on the Internet: A National Survey of Risk, Impact, and Prevention, YOUTH & SOCIETY, Mar. 1, 2003, at 330.
  
  
  18. Adele Horin, Kids Drawn Into Vile Web Porn As 60’s Generation Sits On Its Hands, SYDNEY MORNING HERALD, Mar. 3, 2003, at 1.
  
  
  19. Richard Jerome, The Cyberporn Generation, PEOPLE MAGAZINE, Apr. 26, 2004, at 72.
  
  
  20. David Batty, Half of young kids view web porn, SOCIETY GUARDIAN, July 21, 2004, at http://society.guardian.co.uk/children/story/0,1074,01265858,00.html (last visited Mar. 5, 2005).
  
  
  21. National Research Council, Youth, Pornography and the Internet, ch. 3.3, (Dick Thornburgh and Herbert S. Lin eds., 2002) available at http://bob.nap.edu/html/youth_internet/ch3.html (last visited Mar. 5. 2005).
  
  
  22. Morality in Media, ObscenityCrimes.org at http://www.obscenitycrimes.org.
  
  
  23. Id.
  
  
  24. Cline, Victor B., Pornography’s Effect of Adults and Children, Morality in Media, 58 (2001), at http://www.moralityinmedia.org/pornsEffects/clineart.htm.
  
  
  25. Morality in Media, Why do Kids Encounter Online Pornography? Because Obscenity Laws aren’t Enforced, 9 (2001), at http://www.obscenitycrimes.org/KaiserFamFound.cfm.
  
  
  26. US v. Playboy, 529 U.S. 803 (2000).
  
  
  27. Id. at 806.
  
  
  28. FCC v. Pacifica, 438 U.S. 726, 743 (1978). See also Young v. American Mini Theatres, 427 U.S. 50 , 70 (1976) ([I]t is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment”); Barnes v. Glen Theatre, 501 U.S. 560, 566 (1991) (“Nude dancing of the kind sought to be performed here is within the outer perimeters of the First Amendment, though we view it as only marginally so.”).
  
  
  29. City of Renton v. Playtime Theatres, 475 U.S. 41, 54 (1986).
  
  
  30. Sable Communications v. FCC, 492 U.S. 115 (1989).
  
  
  31. See, e.g., Pacifica, 438 U.S. at 749-50.
  
  
  32. United States v. Playboy Entertainment Group, 529 U.S.803, 834 (2000).
  
  
  33. Pacifica, 438 U.S. at 748.
  
  
  34. Id. at 749.
  
  
  35. Paris Adult Theatre I v. Slaton, 413 U.S. 49, n.10 (1973).
  
  
  36. Playboy, 529 U.S. at 812.
  
  
  37. Id. at 818.
  
  
  38. Id. at 823.
  
  
  39. Playboy, 529 U.S. at 839-41 (emphasis added) (citations omitted) (Breyer, J., dissenting).
  
  
  40. Morality in Media Inc., Cableporn Update, Utah Lawmakers Override Veto, Pass Cableporn Law, MORALITY IN MEDIA INC. NEWSLETTER, May 1983 at 4.
  
  
  41. Robert Peters, Hardcore Pornographic Films on Your Cable TV System, MORALITY IN MEDIA NEWSLETTER, Mar. 1995 at 5.
  
  
  42. Playboy, 529 U.S. at 803-04.
  
  
  43. Sally Bedell Smith, Battle Intensifying Over Explicit Sex on Cable, N.Y. TIMES, Oct. 3, 1983, at A1.
  
  
  44. Morality in Media, Inc., Cableporn Update, Memphis in Uproar Over Playboy Channel, MORALITY IN MEDIA NEWSLETTER, Nov. 1984 at 2.
  
  
  45. Information Providers Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866 (9th Cir. 1991)
  
  
  46. Dial Information Services v. Thornburgh, 938 F.2d 1535 (2nd Cir. 1991), cert. den., 502 U.S. 1072 (1992)
  
  
  47. Information Providers, 928 F.2d at 873 and Dial Information, 938 F.2d at 1542.
  
  
  48. Information Providers, 928 F.2d at 872-73.
  
  
  49. Dial Information, 938 F.2d at 1542
  
  
  50. Playboy, 529 U.S. at 841-45 (Breyer, J., dissenting) (citations omitted).
  
  
  51. Id. at 805. (referring to the Section 505 of the Telecommunications Act of 1996).
  
  
  52. Ashcroft v. ACLU, 124 S.Ct. 2783, 2795 (2004) (referring to Child Online Protection Act).
  
  
  53. Id. at 2793-94 (emphasis added).
  
  
  54. Ginsberg v. New York, 390 U.S. 629, 640 (1968) (citing People v. Kahan, 15 N.Y.2d 311 (1965) (Fuld, J., concurring.)).
  
  
  55. Pacifica, 438 U.S. at 748
  
  
  56. Morality in Media, Inc., My Son Has Been Victimized by Pornography, OBSCENITYCRIMES.ORG, at http://www.obscenitycrimes.org/espforparents/MomsTestimony.cfm (last visited Jan. 24, 2005).
  
  
  57. Information Providers, 928 F.2d at 873.
  
  
  58. Henry J. Kaiser Family Foundation, Few Parents Use V-Chip to Block TV Sex and Violence, but More Than Half Use TV Ratings to Pick What Kids Can Watch, 1 (2001), at http://www.kff.org/entmedia/3158-V-Chip-release.cfm (last visited Jan. 24, 2005).
  
  
  59. Henry J. Kaiser Family Foundation, Parents, Media, and Public Policy: A Kaiser Family Foundation Survey, at 7 (2004) at http://www.kff.org/entmedia/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=46689 (last visited Jan. 24, 2005).
  
  
  60. Ashcroft v. ACLU, 124 S.Ct. at 2786.
  
  
  61. Id. at 2802 (Breyer, J., dissenting.)
  
  
  62. Id.
  
  
  63. Playboy, 529 U.S. at 818.
  
  
  64. Roth v. United States, 354 U.S. 476, at 482 (1957).
  
  
  65. Roth, 354 U.S. at 487.
  
  
  66. Near v. Minnesota, 283 U.S. 697, 714 (1931).
  
  
  67. Id. at 715.
  
  
  68. Id. at 716.
  
  
  69. Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, at 103-04 (1973) (citing Professor Chafee, 2 Z. Chafee, Government and Mass Communications 640-41 (1947)).

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