1. Licensing Form 2. UN Report 3. Johnson 4. Vicomsoft 5. Isenberg 6. Dilemma 7. China 8. Morris 9. Court Order 28/9/01 10. Reno I 11. Reno II 12. Reno III 13. Reno IV

ANNEXURE 3
JOHNSON : THE INTERNET & PORNOGRAPHY

source: http://www.uiowa.edu/~cyberlaw/cls99/sempaper/baek416.html

91: 624 Cyberspace Law Seminar
April 16, 1999
Misook Baek School of Journalism and Mass Communications

Professor Nicholas Johnson

The Internet and Pornography:
In the Search for Regulatory Alternatives in a New Technological Environment

I. Introduction

Along with the rapid expansion of ordinary people's access to computer networks and the development of the World Wide Web, the rampant proliferation of pornography on the Internet has brought concerns about its harmful effects on children. As a concrete counteraction, in January 1995, Senator James Exon (D. Nebraska) proposed the CDA amendment to restrict sexually explicit material on the Internet. This attempt at government regulation again sparked long-standing fierce antagonism between free speech advocates and child-welfare advocates surrounding pornography regulation.

Meanwhile, Time magazine's cover story on cyberporn--based on the survey report written by a research team at Carnergie Mellon University--had a major influence on and accelerated public and Congressional debates surrounding regulation of pornography on the Internet.[1] Cyber civil liberty groups, including various human rights and interests groups, invigorated the anticensorship campaign, arguing that the bill would produce a chilling effect on free speech over the Internet.

Since prohibition of obscenity and regulation of pornography for child protection was enforced, there has been controversy concerning compatibility with free speech rights. Effects of both exposure to and legal actions against sexually explicit material have also been at the center of controversy. In addition, the applications of current obscenity laws and regulations in a novel technological setting have doubled the controversies and spawned new conflicts as they are occurring in other legal areas such intellectual property, trade laws, and privacy. Based on the analogies of traditional media, Congress has continually created new laws to regulate Internet content: the Communications Decency Act, and the Children Online Protection Act. Opponents of the laws filed suits and courts struck down the laws.

The purpose of this paper is to seek regulatory alternatives to prohibit obscenity and to protect children from sexually explicit content in a new technological environment. This paper contends that regulation of obscene materials and child pornography should be continued by a combination of current laws and the adoption of new standards of obscenity; and that the development of technology will make it possible to restrict minors access to sexually explicit material without violating the First Amendment rights of adults.

This paper places arguments about pornography regulatory policy in a legal and sociopolitical context to explore regulatory alternatives by better understanding its implications. In my view, the regulation of pornography has historically been contingent not only on court decisions but also on the tension between political and ideological power groups. Part II offers a brief overview of current obscenity and indecency regulations. Part III deals with various positions on obscenity and indecency regulations among conservative Christian groups and child advocates, anti-pornography feminists, and absolute free speech advocates. Part IV examines the legal clashes between traditional regulatory concepts of the physical world and the new interactive technology which creates a cyber space unlimited by geographical locations. Part V concludes that current obscenity laws and the restriction of minors' access to sexually explicit content will effectively function with the establishment of new obscenity standards and the development of zoning technology.

II. Understanding Obscenity and Indecency in the Legal Context

In everyday life, people commonly use the word pornography to describe sexual materials. However, in the legal community, sexual speech is strictly distinguished as either obscenity or indecency. Obscenity is unprotected by the First Amendment, and obscenity laws make it a crime to sell obscene material, even to willing adults. Indecency is less sexually explicit than obscenity, and is protected by the First Amendment for adults. Pornography is also protected unless it is determined to be obscene.

1. Determination of Obscenity: From the Hicklin Rule to the Miller Test

The first widely used definition of obscenity was the Hicklin rule, borrowed from a British law.[2] The Hicklin rule was so broad that it facilitated prosecution by federal and state agencies: If something was obscene to children, it was obscene for everyone and its distribution or sale could be completely prohibited. In 1957, Hicklin was abandoned almost 100 years later.

The Supreme Court adopted a new definition for obscenity in the 1950s and the early 1960s. In Roth of 1957,[3] the Supreme Court ruled that obscenity was not protected by the First Amendment, which was the first attempt to define the scope of modern obscenity law.[4] In 1962, the Supreme Court established a three-prong Roth-Memoirs test which limited the scope of obscenity regulation. It assumed a single, national standard that was applicable to all parts of the country.[5]

In 1973, for the first time, a majority of the Supreme Court in Miller [6] reached agreement on a definition of obscenity:

(a)Whether "the average person, applying contemporary local community standards" would find that the work, taken as a whole, appeals to prurient interest; (b) whether the work depicts, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[7]

Miller established the concept of contemporary local community standards, which continues today, abandoning national standards of the Roth-Memoirs test. Since Miller, obscenity has been evaluated according to the accepted local community standard. Each community has a different tolerance of public depiction of sexual conduct.

After Miller, Hamling [8] clarified the first prong of the Miller test that the "average person" includes all adults, except children, who comprise the community. The term "local community standards" has been defined as "state standard." All communities within the same state share the same standards.[9] The question of applicable community standards becomes an arguable factor in cases that involve the transmissions of pornographic material between states within the U.S., and the importation from outside the U.S. The application of local standards is increasingly producing problems as more mass media and telecommunications data are distributed nationally and globally.

2. Variable Obscenity: Two Standards for the Protection of Children

The Miller test does not apply in three situations: dissemination of sexual materials to minors, child pornography, and the private use of obscene material at home. In Ginsberg, [10] New York State successfully prosecuted a the bookstore owner who sold pornographic magazines to a 16-year-old-boy without infringing on the First Amendment. The magazines had legally been sold to adults. Two different standards, one for adults and one for minors, are allowed for a compelling state interest in protecting the well-being of children. However, a simple ban of all nudity violates the First Amendment. The definition of content that could not be distributed to minors requires narrowly tailored circumstances.[11]

In 1982, the Supreme Court unanimously upheld a New York statute limiting the distribution of child pornography.[12] The state law prohibits any person from knowingly promoting a sexual performance by a child under 16 years and from distributing such materials. The Court held that child pornography as defined in the statute was unprotected by the First Amendment, even if material might not be obscene under the three-part Miller test.

In Stanley,[13] the Supreme Court ruled that individuals might possess obscene materials in the privacy of their homes. However, states can prohibit transportation, distribution and reception of those obscene materials.[14] However, to halt the sexual exploitation of children, some states make it a crime to merely possess child pornography[15] as an exception to Stanley.

3. Indecency Regulation in Broadcasting and Current Obscenity Statutes

All state and federal statutes regulating obscenity are subject to limitations constructed by the Supreme Court and the First Amendment. The Supreme Court--based on the Miller test--deals with many obscenity cases challenging statutes. Each state has different statutes regulating sale, distribution, transportation, manufacture, exhibition, mail, and advertising of obscenity. State statutes and legal enforcement are devoted to the banning of obscenity in adult bookstores and adult theaters, whereas the broadcasting content regulation model and three federal obscenity statutes are primarily applicable to Internet pornography regulation.

a. Indecency Regulation in Broadcasting

Of all mass media, broadcasting has been given the severest restriction and less First Amendment protection in terms of sexual content regulation because of its unique pervasiveness. Title18, section 1464 of the Federal Criminal Code gives the FCC the power to revoke a broadcast license if the licensee transmits obscene or indecent material over the airwaves. Cable and the print media are not subjected to this form of content regulation.[16]

Indecent regulation in broadcasting was upheld in Pacifica. [17] The Supreme Court upheld the FCC ruling that radio station WBAI in New York City violated federal law when it aired filthy words referring to sexual activities or excretory organs in an afternoon broadcast. The Court concluded that the words were indecent as broadcast. The FCC developed the so-called "safe harbor" to protect children, so that radio and television stations are now prohibited from carrying sexually oriented indecent programs between 6 A.M. and 10 P.M. Congress attempted to apply this indecent regulation model in broadcasting to cyberspace in the recent Communications Decency Act, but failed. Courts have refused to apply Pacifica to another medium, limiting it to only over-the-air broadcasting.

b. Three Federal Statutes to Be Applied to the Internet

As opponents of new legislation to regulate Internet content argue, three federal laws are presently employed to prosecute obscene material on the Internet. Meanwhile, existing laws cause many problems in applying the "contemporary local community standards" of Miller to the Internet.

The first statute prohibits child pornography in 18 U.S.C. 2252. This federal statute ban materials that visually depict a sexual performance engaging children under 18 years old. Based on this statute, the Department of Justice presently investigates "traffickers in hard-core child pornography, in child predators, and in large-scale and multi district commercial distributors of obscene materials."[18]

The second statute 18 U.S.C. 1465 [19] bans the interstate transfer of obscene materials for selling and distributing. Under the Commerce Clause of the Constitution, the federal legislature has the exclusive power to regulate interstate commerce. This statute enables the U.S. Postal Service to play a role in regulating the flow of pornographic material in the mail. In the application of this statute, Thomas[20] was prosecuted because of transportation of computer image files.

The third federal statute is 47 U.S.C. 223 (a). This law regulates the "dial-a porn" telephone industry, and prohibits the transfer of obscenity over the telephone line.[21] It is a federal offense to make "any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent; - - - shall be fined not more than $ 50,000 or imprisoned not more than six months or both."[22] Providers must restrict access to minors under 18 years old, according to FCC regulations, which require providers to use access codes, payment by credit card or scrambling devices.

While obscene interstate commercial telephone messages were banned and criminalized, Sable in 1989 found that indecent sexual expression was protected by the First Amendment. In Sable, the court refused to apply Pacifica's finding of "uniquely pervasive" medium to telephone calls.[23]

III. Emerging Controversies of Sexual Content on the Internet: Politics and Ideology of Pornography

Regulating pornography presupposes its possible harm on society and human values. In fact, contemporary scientific studies have not resolved the question as to whether pornography increases or decreases sexual aggression in society. Opponents and proponents of pornography regulation toss about contradictory consequences-- the social and psychological impact of sexually explicit text and imagery. Undoubtedly, each camp argues for different policies and social measures, based on their different political and ideological positions rather than on scientific evidence. Even so, they can be roughly categorized into three camps: Conservative Christian groups and child-welfare advocates, anti-pornography feminists, and absolute free speech advocates, including anti-censorship feminists.

1. Conservative Christian groups and Child-Welfare Advocates

Conservative Christian groups and the so-called pro-family advocacy groups[24] decry the recent phenomenon of sexual content on the Internet. They argue that pornography undermines moral standards and human dignity, and stimulates antisocial acts like rape, child molestation, sexual violence, and other deviant sexual behavior.

One activist of an anti-pornography group, Cathleen Cleaver, argued that current laws do not play an appropriate role in regulating "pornography-related activity" in cyberspace. Recalling that The Washington Post called the Internet the largest pornography store in the history of mankind, Cleaver maintained that pornography is "the third largest sector of sales on the Internet, generating $1 billion annually." She also stated that there are an estimated 72,000 pornographic sites on the WWW alone, with approximately 39 new explicit sex sites every day."[25]

Cleaver argued that it has become relatively easier for children to encounter pornographic imagery and link to those Web sites than to find adult material in the physical world. People can get pornography far more freely via the Internet than any other media. Thus, the burden should be primarily on pornographers and distributors, not solely on parents, to deal with the issue of children's exposure.[26]

Thus, conservative Christian groups and child advocacy groups maintain that easier access to pornography on the Internet calls for stronger law enforcement. Overall, they demand increased regulation and suppression of child pornography and pornographic materials in the marketplace.

2. Anti-pornography Feminists: Harmful Effects on Society and Women

Another fierce debate on pornography regulation occurs in feminist groups. Feminist perspectives on pornography are polarized by different ideological positions on free speech, assessment of harmful effects of pornography, and measures countering pornography.

Anti-pornography feminists argue for regulation of subordinating and degrading women in pornography. They attempted to legislate for a ban of female exploitation in pornography, arguing that pornography both discriminates against women and provokes violence against women. In 1984, Indianapolis passed such a law.[27] However, U.S. District Judge Sarah Evans Baker ruled the anti-pornography law unconstitutional because it was so vague, it could prohibit the kind of speech protected by the First Amendment. The judge did not agree that protection of women from sexual exploitation was a compelling state interest, like child protection.

Cass R. Sunstein[28] also argued for regulating female pornography; however, his focus on the social problem of sexual violence and "gender-related harm" is a little different from the anti-pornography feminists' focus on degradation and discrimination of women.[29]

Catherine MacKinnon, a strong anti-pornography scholar, notes that the Internet accelerated the spread of pornography and more visibly reflected a reality that was already pervasive in society.[30] For example, the Rimm study [31] showed that more than ninety-nine percent of all the pictures studied on the AABBS (Amateur Action Bulletin Board System) presented women having sex with animals.[32] Without mentioning the Rimm study, the concern about proliferation of pornography on the Internet is generally resonated by parents and certain free speech advocate groups.[33]

In sum, anti-pornography feminists want to legislate new laws to prohibit female pornography over the Internet and other media, and ask to even more strictly apply current laws because the quantity of pornography on the Internet is increasing, its quality is deteriorating, and access to it is getting easier.

3. Absolute Free Speech Advocates

Absolute free speech tradition vigorously opposes the prior restraint and publication censorship. Along with the rapid expansion of ordinary people's access to computer networks, emerging cyber civil liberties groups (or cyber libertarians)[34] have played a leading role to preserve free speech on the Internet. Based on the same First Amendment philosophy, anti-censorship feminists[35] emphasize women's liberation from patriarchal sexual suppression.

a. Civil liberties groups (Libertarians)

To certain groups of libertarians, obscenity is speech not sex, and therefore it is eligible for the First Amendment protection. They oppose any form of legal restriction on speech.[36] Other groups, for instance, the ACLU unwillingly accepts that "only a narrow range of 'obscene' material can be suppressed."[37] This camp fears eventually political censorship, noting that cultural censorship is not far ahead of political censorship. For even the relatively narrow obscenity exception serves as a vehicle for abuse by government authorities.[38]

The ACLU denounces the Supreme Court's support of the restriction of sexual speech based on moral grounds. This restriction infringes on individuals' rights to choose what they see and listen to.[39] From this perspective, the regulation of indecency in broadcast is merely the result of "the politically seductive goal of 'protecting the children'," which imperils and distracts from safeguarding freedom of speech in a democracy.[40]

Therefore, this camp opposes the regulation of indecency in broadcasting, claiming it is a violation of the First Amendment. They suggest the using the print model regulation in traditional and new media. The civil liberties camp opposes the argument that children can easily access to pornography on the Internet: unlike the situation with broadcasting or cable television, children cannot easily encounter sexually explicit or offensive pictures on the Internet; and downloading adult imagery requires computer savvy and considerable effort.[41]

b. Anti-censorship Feminists: Harmful Effects of Sexual Censorship on Free Speech and Women

Anti-censorship feminists argue that anti-pornography laws are doubly flawed: they undermine both free speech and equality.[42] Anti-censorship feminists attack the anti-pornography campaign, avowing that it simply reproduces the assumptions and ideology of the dominant culture concerning sexuality.[43] Conservative political forces often use sexual censorship as a major weapon to overturn feminist gains, and a social regime of sexual censorship undermines women's bodily and sexual freedom.[44] The primary harm of pornography on women's rights comes from sexual censorship, not from explicitly sexual material, per se.[45]

These feminists note that individual justices in the U.S. Supreme Court have expressed the critiques of obscenity law, and argue that the suppression of obscenity is dangerous to an open and free society.[46] Accordingly, anti-censorship feminists reject the belief that government and laws can protect women from harmful sexual text and images.[47]

Carlin Meyer, an active anti-censorship feminist scholar, maintains the potential of the Internet as an open forum to foster honest discussion of sexuality, especially for the young and to liberate women. Open discussion can teach what is wrong with pornography, and formulate "a new sexual truth against falsehood of human sexual activity" as depicted by pornography.[48] Therefore, she argues that regulating Internet pornography is a futile effort and instead, suggests ignoring the growing presence of cybersmut and concentrating on expanding access to online sexual discussion.[49] In this sense, the Internet may be beneficial. Another scholar asserts that cybersex can serve as an alternative method of satisfying sexual urges, rather than stimulating them.[50]

To summarize, anti-censorship feminists reject any form of sexual censorship and do not consider Internet sexual speech to be a problem. They also assert that it is even more difficult to gain access to the Internet than nearly anywhere else in pornographic culture; for instance, late night cable video provides easier access to sexually explicit material than does the Internet.[51]

A moderate position cautiously predicts that the current proliferation of Internet pornography may be just a passing phase.[52] One moderate asserts that online digital pornography causes less harm to the local community than pornography in bookstores on street corners because it is used in private at home.[53]

As shown above, social and political groups overall have become polarized according to their political ideologies concerning the regulation of Internet pornography. In fact, pornography policy and regulation are mostly directed by tension between conflicting political forces which drive toward different social and legal measures. The political background establishing the Miller test shows how this political tension works. In its Report of the Commission on Obscenity and Pornography, the 1969 Commission appointed by President Lyndon Johnson recommended the repeal of all obscenity laws restricting the use of erotic materials by adults, but the succeeding president, Richard Nixon, rejected the commission's conclusion and changed the makeup of the Supreme Court. The new Court established the legal definition of obscenity in the Miller test.[54] Jurors and judges in courts, who determine and judge what obscenity is in their community are also affected by the political and social tension of their time. In this sense, the community standard of the Miller test operates in public opinions shaped by competition of diverse social power groups.

The politics of pornography regulation surrounding new computer technologies is repeated between child advocates and conservative political force, and free speech advocates. Corresponding to conservative political forces,[55] Congress has sought to create new laws to regulate obscene and indecent content on the Internet. Congress enacted the Communications Decency Act in 1996 and the Child Online Protection Act in 1998.[56] To promote child protection from sexual material, two new bills--the "Safe Schools Internet Act" and the "Children's Internet Protection Act," respectively introduced in the House and in the Senate--mandate the installation of filtering software on all computer terminals of public elementary and secondary schools.[57]

IV. The Clashes Occurring When Old Concept Meets New Technology

There are two methods of regulating Internet pornography. One is to rely on existing federal obscenity statutes, as examined in the previous section; the other is to legislate new laws that particularly aim at Internet pornography prosecution. There are four cases involving Internet pornography regulation which illustrate problems arising when traditional concepts of regulation--whether by existing laws or by new laws--clash with the Internet.

1. When Existing Laws and Rules Apply to the Internet: Issues of Jurisdiction and Local Community Standards

The Thomases[58] were convicted in violation of federal obscenity statutes for transportation of obscene material through a computer network. They operated an adult computer bulletin board system called Amateur Action (AABBS) from their home in California. Subscribers who paid money for membership could download allegedly obscene material in Tennessee from the AABBS. An undercover postal inspector, working with an assistant U.S. attorney in Memphis, Tennessee, subscribed to the BBS to go after it. He downloaded graphic imagery files of sexually explicit content, which led to indictment on violation of obscene laws in Tennessee.[59]

The 6th U.S. Circuit Court of Appeals upheld that transmission of obscene computer images violated the statute 18 U.S.C. 1465[60] by knowingly using and causing to be used a facility and means of interstate commerce--a combined computer/telephone system-- for the purpose of transporting obscene material in interstate commerce.[61] The court focused on the dissemination of any obscene material, regardless of the means used to effect that end.

The defendants (Thomases) tried to move their case from Tennessee to California, in which they ran the business, but the Western District of Tennessee judge denied their pre-trial motions because the alleged obscene material was downloaded and Memphis was affected by the distribution of it.[62] The appellate court held the district court's decision, saying that a person residing in Tennessee could download and view the sexually explicit images transported on one's computer screen, and/or print them out in hard copy.[63]

The appellate court argued that there was no need to adopt a new definition of community in this case because the Thomases advertised and sold obscenity, and knew through their membership requirement that they had a member in Tennessee. However, this case brought up debate that the jurisdiction application in Thomas infringed on the first prong of Miller test, in which the Supreme Court recognized that different geographic communities have different moral standards. Memphis standard was applied to the Thomases of California.

A significant problem is that the electronic bulletin board system by its nature does not have geographical limitations. Any member of the BBS can access and download obscene images from the host computer without BBS operators knowing about transmission of the images. Even though BBS operators did not intend to send them out, under the Miller test all BBS are subject to obscenity prosecution in all states to which the sexual images or texts are distributed.[64]

An accompanying problem is that nothing guarantees to screen users' geographic location since they can freely use or make up any online address. The current technology does not allow material to be posted selectively within certain limited communities. Consequently, this could mean that the most restrictive law in one jurisdiction could be applied to other jurisdictions. This issue is also associated with the practical problem that state and federal officials face when the source of obscenity is outside the U.S.

Eventually, venue shopping and various community standards could create massive chilling effect on free speech on the Internet because people would fear potential prosecution. John S. Zanghi, J.D. suggests adopting "contemporary standards" of "society at large" without geographic limitations,[65] as conversely the Miller test adopted community standards from national obscenity standards. According to Zanghi, "contemporary standards" need an expert's testimony to determine obscenity under those new standards, and statistical testimony based on empirical studies of obscenity.[66] In Thomas, the court did not introduce expert testimony. Although measuring obscenity seems to be a relatively new experiment compared to measuring the harmful effects of obscenity on society, there is still difficulty in determining obscenity.

2. When New Legislation Based on Old Concepts Meets the Internet

Each state can legislate different statutes to regulate obscenity. When Congress passed the Communications Decency Act, a new federal statute to regulate indecency on the Internet, the state of New York also legislated its version of the CDA.[67] Interests groups, including the commercial and the noncommercial, filed lawsuits, so courts attempted to find appropriate analogies for the purpose of judging their constitutionality.

a. ALA v. Pataki in the State of New York: Issues of Interstate Commerce and Definition of "Harmful to Minors"

Pataki illustrates the problem of Internet regulation at a state level. The American Library Association (ALA) representing fourteen organizations--including book sellers, publishers, computer software companies, for-profit or non-profit Web operators, and a civil liberties group--filed a lawsuit[68] against New York Penal Law 235.21(3) (the "Act").[69] The Act was a criminal statute that found a person disseminating indecent material to minors ("harmful to minors") guilty in the second degree. The ALA et al. argued that the Act violated the First Amendment and the Commerce Clause of the Constitution.

The Commerce Clause under the Constitution prohibits an individual state's interference with the flow of interstate commerce in two ways. It restricts discrimination aimed directly at interstate commerce; and it bars state regulation that unduly burdens interstate commerce, because certain types of commerce require consistent treatment and regulation only on the national level.[70]

Plaintiffs protested the potential chilling effect on free speech and the potential burden on their Internet business or on computer networks. The plaintiffs further argued that they cannot effectively prevent their Web sites or discussion groups from being accessed by New York users[71]--as already discussed in Thomas--due to the technological unfeasibility to limit access to the Internet according to a user's geographical location.

The court noted that the state's compelling interest in protecting children was necessarily concerned with interstate communications. Nevertheless, the court agreed that the Act would have forced plaintiffs to self-censor against the threat of criminal liability and that they would lose the sales and goodwill generated by their use of the Internet (relative to censored and noncensored materials and resources).

The court drew an analogy between the Internet and a highway or railroad, more traditional routes of interstate commerce. This analogy was significant in applying a legal code to the Internet.

The US Southern District Court of New York ruled that first, the Act unconstitutionally projected New York law onto interstate conduct occurring outside New York. Second, the burdens on interstate commerce caused by the Act exceeded the local benefits protecting children from harmful material. Third, the Act unconstitutionally subjected interstate use of the Internet to inconsistent regulation. The court recognized that the Internet's nature of seamless connection could not be effectively regulated by any single state regulation. Inconsistent state regulation would only cause chaos and jeopardize the growth of the Internet, the national infrastructure of communications and trade. For each state would enact its own laws, subjecting users to conflicting obligations.[72]

The district court understood that a state's jurisdiction was geographically limited, whereas geographical limitation was meaningless on the Internet. This case also illustrated the contradiction between the concept of physical geographic jurisdiction and the novel idea of universal cyberspace, which consists of various, numerous cyber communities. The district court ordered a preliminary injunction of the Act on June 20, 1997. In this case, the court only dealt with the violation of the Commerce Clause, leaving the matter of the First Amendment to the U.S. Supreme Court, which looked at the constitutionality of the CDA.

b. The Communications Decency Act (CDA): Issues of Definitions of "Indecent" and "Patently Offensive," and Feasibility of Identity Verification Technology

The CDA came into being as Title V of the Telecommunications Act of 1996, which broadly reformed the Communications Act of 1934. President Clinton signed the Telecommunication Bill into law on February 8, 1996; and on the same day, the ACLU, representing nineteen other organizations, filed its lawsuit.[73]

The ACLU et al. has challenged two provisions of the CDA: the knowing transmission and display of "indecent" or "patently offensive" messages to minors.[74] They argued that the definitions of "indecent" and "patently offensive" were so overbroad and vague that the CDA could have abridged legitimate online discussions between adults. It could even have punished an e-mail conversation between a parent and a child, or the display of classic arts. Since the CDA was a criminal statute, it could have punished violation with a jail term of up to two years and a $25,000 fine.[75]

The CDA offered two affirmative defenses, limiting the application of the two provisions above by using available technology in good faith to prevent access of minors to indecent content, or by requiring credit card or other feasible age verification systems that many commercial providers already employ.[76] The plaintiff (the ACLU et al.) argued that no such technology exists which allows those restrictions in news groups, mail exploder, or chat rooms and that the cost of adult age verification systems for all noncommercial speakers on the WWW would be "prohibitively expensive."[77]

The Supreme Court agreed with this contention.[78] Three points were made in the ruling that Justice John Paul Stevens wrote for the Court. First, Justice Stevenson made an analogy between the Internet and a "dial-a-porn" (A business offering sexually oriented, prerecorded telephone messages) since both can use effective devices (e.g. credit cards and access codes) to prohibit minors' access to commercial pornographic, indecent content while simultaneously protecting adults' rights of access to it.[79] The Court cited, not Pacifica, but Sable in which the constitutional protection of indecent speech was recognized This analogy meant that the Court saw the Internet as a totally different medium from broadcasting and cable TV, whose strict regulations could therefore not be applied to the Internet.

Second, The Court noted that the definitions of the words "indecent" and "patently offensive" were too vague, causing problematic concerns because the CDA was a content-based regulation of speech and a criminal statue. It could have unconstitutionally limited adults' indecent speech. To the extent that the CDA's "indecent" standard was only one part of the three-prong Miller test, it did not limit the uncertain sweep of the broad definition, unlike Miller's other two prongs--"taken as a whole" and "social value." This argument implied that if its languages were more carefully tailored, the CDA's impact on protected speech could be justified. However, Justice O'Connor in his concurring in part and dissenting in part opinion recognized that states have long denied minors access to "harmful to minors" speech.[80] Thus, Justice O'Connor's assumption was that the technological feasibility of age verification could validate the CDA's constitutionality rather than a tailored definition of indecency.

Third, the Court focused on technological unfeasibility to screen minors' access to indecent content without denying adults' access. The Court rejected the government's age verification defense as not being workable because of its technological and economical implausibility for noncommercial as well as some commercial businesses. It is noteworthy that Justice O'Connor suggested the concept of cyber zoning based on advanced technology which would be able to screen the identities of minors as a precondition of the CDA's constitutionality.

The plaintiff groups' main concern was over the chilling effect that the CDA's vagueness may have had on freedom of speech. In fact, they feared that the law would have imposed political censorship on the Internet. These groups also insisted that the Internet be allowed to evolve as an unprecedented medium having innovative potential for democracy and society; and that the Internet, like print media, therefore deserved the highest degree of First Amendment protection.[81] The Supreme Court acknowledged the democratic potential of the Internet, stating that "anyone can become a town crier with a voice that resonates farther than it could from any soapbox"[82] with relatively unlimited, low-cost capacity for communication of all kinds. The Court was well educated by the plaintiff groups about the characteristics of the Internet, and responded positively to social expectation of the Internet.

c. The Child Online Protection Act (COPA): Issues of Interstate Commerce and Definition of "Harmful to Minors," and Feasibility of Identity Verification Technology

The COPA[83] was the second Congressional attempt to regulate sexual content on the Internet by remedying the constitutional defects of the CDA. In the COPA, Congress intended to restrict children's access to teasers, free sexually explicit graphic imagery designed to entice a user to pay a fee to browse the whole site. It is much easier to encounter or accidentally link to pornographic pages which offer these teasers, although children could not enter the next screen because it requires payment by credit cards.[84]

Nevertheless, the constitutional flaws of the COPA were challenged by the ACLU, representing 17 organizations-- including civil liberties groups, Web site operators, content providers of sex information for gay, lesbian, and those with disabilities and illness, and booksellers. Together, they filed a lawsuit on October 22, 1998. On February I, 1999, the Eastern District of Pennsylvania granted the preliminary injunction prohibiting enforcement of the law.

The COPA made it a federal crime to "knowingly" communicate to minors "for commercial purposes" material regarded as "harmful to minors." Criminal penalties included fines of up to $50,000 for each day of violation, and up to six months in prison. The Act also had the option of bringing a civil suit against individuals with the same amount of fine of up to $50,000 for each day per violation.[85]

The plaintiff groups did not challenge the obscenity regulation of the COPA. They challenged the COPA's regulation of "harmful to minors" speech on the grounds that it restricted adults' protected speech and imposed an economic and technological burden on speakers on the Web. In addition, its application to "commercial purpose" could not protect noncommercial providers. They argued that it would chill speeches on the Web.[86]

The court found for the plaintiff.[87] First, the court agreed with the plaintiffs' contention that certain sexual material could be considered "harmful to minors" by some communities because the COPA did not define "community" for the purpose of determining what content was "harmful to minors" in the global medium of cyberspace.[88] The COPA could impose liability on a speaker whose communication on the Web contained only some material harmful to minors.

Second, the court found the term "commercial purpose" did not defend the plaintiffs (the noncommercial) although the COPA limited its applicability only to a commercial pornographer who "knowingly makes any communication for commercial purpose." The COPA intended to prosecute those who sell and distribute harmful materials to minors on the Web to make profits. The defendant argued that the plaintiffs were not "engaged in the business" of selling or distributing materials harmful to minors under the law and the content on plaintiffs' Web sits were not harmful to minors. However, the court construed that "engaged in business" did not necessarily mean that the making or offering to make such communications was the person's sole or principal business or source of income. Therefore, the plaintiff groups were subject to the category of a speaker engaged in the business and could have been prosecuted under the law.

Third, the court found that the technology and cost necessary to screen minors' access was still a burden to the Web sites of the plaintiffs and non-profit organizations, even though it was not a burden for commercial pornographers. The court considered that this burden eventually would be an obstacle to free speech on the Web, and limit the free speech rights of adults.

Although sexual information on the plaintiff groups' Web sites was not considered harmful to minors, the plaintiffs could not avoid being linked to other Web pages containing material harmful to minors or could not monitor those materials posted by users. All of the plaintiff groups ranging from non-profit to for-profit, have some sexual content and/or have members who post sexual content on their Web sites and/or other sites. Another point was that, even though implementing a credit card or a pin card screening process to identify users' age was economically affordable or technologically feasible, those identification processes would decrease users of the plaintiffs' web sites, and would therefore result in serious economic loss. In addition, the affirmative defenses did not reduced the burden, which could result in the decrease of users of their Web sites because of loss of anonymity.[89]

The four cases discussed above raised the issues of interstate commerce; applications of jurisdiction; definitions of "indecency," or "harmful to minors"; and technological feasibility relevant to those issues. First, with regard to the interstate commerce issue, the court in Thomas found that the transmission of obscene material via computer networks in interstate commerce was a violation of the statute 18 U.S.C. 1465. Second, jurisdictional issues in cases involving the Internet are closely related to the defect of local community standards of the Miller test and require the reestablishment of obscenity standards such as "contemporary social (or national) standards. Third, the definitions of "indecency," or "harmful to minors" is more about whether the restriction of minors' access to pornography infringes on adults' First Amendment rights than about the definition per se. The "harmful to minors" standards of states have been sustained in print media and other adult establishments by courts. Therefore, the focus moves on the technological feasibility and economic practicability to screen minors' access to pornography. To explore regulatory alternatives, the following section will discuss the redefinition of community standards and restriction on "harmful to minors" content in terms of technological applicability. In this discussion, the understanding of sociopolitical context surrounding the regulation of obscene and pornographic material is as crucial as the understanding of legal issues because the application of the standards of obscenity and indecency relies largely on the interpretations of communities or society.

V. Two Alternatives: Contemporary Standards of Obscenity and Cyber Zoning

Debate surrounding pornography has produced extreme controversy between different political and ideological camps, and regulation of pornographic content on the Internet is magnifying this conflict. Absolute free speech groups, including anti-censorship feminists and libertarians, unwillingly consent or deny obscenity regulation, and regard indecency regulation as a violation of the First Amendment. Conversely, conservative religious groups and child advocates demand stronger restriction of the increased pornography on the Internet. The most fierce antagonism concerns the regulation of "indecent" or "harmful to minors" content on the Internet.

Apart from this normative debate over whether we should restrain indecency or obscenity, when existing obscenity laws apply to the Internet, new conflicts occur in their applicability. As illustrated in Thomas,[90] community standards of the Miller test based on physical geographical jurisdiction do not appropriately operate in cases involving computer networks; computer networks create new concept of geography (or community) in cyberspace, which is not relevant to locations in the physical world. Potentially the most restrictive law in one jurisdiction could apply to the rest of jurisdictions in the nation. Pataki[91] also found that the geographical limitation of states' jurisdiction was meaningless on the Internet.

Two Congressional efforts[92] to impose access restrictions to protect children from exposure to indecent content were ruled unconstitutional due to broad definitions of "indecency" or "harmful to minors" speech and the unfeasibility of age-verification technology.

Civil liberty activism among absolute free speech groups suggests the print model as a regulatory framework for the Internet, opposing laws that regulate indecency.[93] Pornography regulation in the print model follows the principles of market competition and self-regulation which have long governed newspapers, magazines, and books.[94] However, courts have sustained states' restriction on "harmful to minors" speech and minors' access to "adult zones" such as adult bookstores and adult theaters.[95] Ginsberg was about print media in the physical world where it is possible to segregate indecent speech into certain areas to prevent minors' access. In this light, the print model is also restricted in terms of child protection along with self- regulation of markets. "Indecency" or "harmful to minors" speech is defined by community standards.

Emerging issues in the search for regulatory alternatives for the Internet are 1) new standards to determine obscenity in a new technological setting, and 2) feasibility of advanced technology to create constitutionally adequate cyber adult zones that prohibit minors' access and protect adults' indecent speech.

First, as Zanghi suggested[96] the "contemporary standards" of "society at large"-- without geographic limitations--could replace local community standards of the Miller test. According to Zanghi, the "contemporary standards" of "society at large," require an expert's statistical testimony based on empirical study of obscenity.

However, an empirical study is still problematic in determining obscenity like an effect study of pornography. Any single entity cannot produce the clear-cut definition of obscenity which will appease everyone in practice. To this end, public discussions and rational debates inside and outside courts will help to examine and develop new contemporary standards applicable to our new information age, as much as politics and other social institutions do. In fact, the Miller test was established in competition between different political forces to gain public supports, and local community standards have also been used based on public consensus through public discussion in the communities. In my view, the tension between absolute free speech advocates and child advocates will negotiate the scope of new "social (or national) obscenity standards" through public discussion and reaching a consensus. "Average person," applying new "social (or national) standards" would define the obscenity based on other two parts of the Miller test.

In cases involving obscenity coming from outside the U.S., an effective international regime would be an ideal solution. Currently, foreign commerce is also subject to 18 U.S.C. 1462;[97] a foreign distributor could be brought within U.S. jurisdiction. However, technological alternatives and negotiation between national sovereignties would be the second-best solution, as we have seen in international trade agreements.[98]

Second, zoning cyberspace would potentially realize the goal of protecting children without infringing on adults' constitutional rights, as Justice O'Conner already suggested in Reno I.[99] Zoning the Internet is analogous to real-space zoning found in adult book stores and theaters. This zoning concept, based on identity-verification technology, is not totally new and is already being applied to copyright protection.[100] "Indecency" or "harmful to minors" standards can be established the same way that obscenity standards are established. In fact, the limitation of minors' access to "indecency" or "harmful to minors" content has long been held by states. Creating "locks" by advanced technology within the Internet, suggested by Sunstein, is also similar to the concept of zoning for constitutional regulation of indecency.[101]

The problem is that the zoning technologies are still expensive and burdensome on speakers, and are not available for all categories of the Internet like e-mail, mail exploder, and newsgroups. Like in Reno I, the court in Reno II[102] found that identification technology is still expensive for noncommercial and technologically unfeasible. Hence, Lessig's idea is that the more court cases dealing with current Internet conflicts, the better--until a zoning device is available.[103] The individual use of multiple rating and filtering systems will be useful as a voluntary zoning device.[104]

In conclusion, laws (whether old or new) require redefinition of standards, but traditional principles that protect minors from pornographic material generally stand firm. Current obscenity laws and the restriction of minors' access to sexually explicit content will effectively function with the establishment of new obscenity standards and the development of zoning technology. One last point is that courts need to consider the potential of the Internet as an open educational forum for young adults, as anti-censorship feminist groups argue. The applications of "harmful to minors" standards in courts will determine if the protection of children from pornography necessarily means the suppression of healthy discussion of human sexuality.

Endnotes

1. Time ran the story in the July 3, 1995 issue, while the CDA was initially being discussed in Congress. An eighteen month study entitled "Marketing Pornography on the Information Superhighway," which was going to be published in The Georgetown Law Journal (Vol. 83: 1849, 1995), was primarily conducted by Martin Rimm, an undergraduate in electrical engineering. The Rimm study's subtitle ("a survey of 917,410 images, descriptions, short stories, and animations downloaded 8.5 million times by consumers in over 2000 cities in forty countries, provinces, and territories") implies the scope and methodology of the study. It claimed that 83.5 percent of those pictures were pornographic and that the most popular pictures were of hard-core pornography such as pedophilia, bondage, sadomasochism and bestiality. Conservative congressmen and Christian Coalition Director Ralph Reed urged to back up the findings of the study, on one hand; some experts on Internet content (e.g., Professor Donna Hoffman of Vanderbilt University) criticized that the study had "serious conceptual, logical and methodological flaws and errors." (See Gary Chapman, Not So Naughty, The New Republic, 11 (July 31, 1995); Robert Cannon, The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway, 49 Federal Communications Law Journal 51 (Nov. 1996). [http://www.cais.net/cannon/cda/cannon2.html])

2. Regina v. Hicklin, L.R. 3 Q.B. 360 (1868).

3. Roth v. United States, 354 U.S. 476 (1957).

4. John S. Zanghi, J.D., Community Standards in Cyberspace, 21 University of Dayton L.R. 95 (1995), at 98.

5. Memoirs v. Massachusetts, 383 U.S. 413 (1966). The three main parts of the Roth-Memoirs test: 1) The dominant theme of the material, taken as a whole, appeals to an average person's prurient interest in sex. This modified the Hicklin rule in two ways: (a.) Material that was offensive to children or overly sensitive persons was no longer declared obscene for all. (b.) The entire work, not just a part of a book or film, must be considered when determining whether it is obscene. 2) The material is patently offensive because it affronts contemporary community standards relating to sexual matters.3) The material is utterly without redeeming social value. It has no value at all. (Don R. Pember, Mass Media Law 418 (1997)).

6. Miller v. California, 413 U.S. 15 (1973)

7. Id at 24 (citation omitted).

8. Hamling v. United States, 418 U.S. 87 (1974).

9. Smith v. United States, 431 U.S. 291 (1977).

10. Ginsberg v. New York, 390 U.S. 629 (1968).

11. Erznozink v. City of Jacksonville, 422 U.S. 205 (1975).

12. New York v. Ferber, 458 U.S. 747 (1982).

13. Stanley v. Georgia, 394 U.S. 557 (1969).

14. United States v. Orito, 413 U.S.139, 140 (1973).

15. Osborne v. Ohio, 110 S. Ct. 169 (1990).

16. Kenneth C. Creech, Electronic Media Law and Regulation 20 (1994).

17. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

18. U.S. Department of Justice letters to Chairman, Committee on Commerce, U.S. House of Representatives, October 5, 1998. [http://www.aclu.org/court/acluvrenoII_doj_letter.html] (The Department acknowledges that the national investigation has resulted in 196 indictments, 75 information, 207 convictions, and 202 arrests.)

19. 18 U.S.C. 1465, The statute states: Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution, or knowingly travels in interstate commerce, or uses a facility or means of interstate commerce for the purpose of transporting obscene material in interstate or foreign commerce, any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both.

20. United States v. Thomas, 74 F. 3D 701 (1996). The 6th U.S. Circuit Court of Appeals.

21. See Cannon, supra note 1, at note 27. The section 223 entitled "Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications" is part of the Common Carrier subchapter of the Wire and Radio Communications Chapter of title 47. To ban cyberporn, the Communications Decency Act amended this section 223 of title 47, changing the word " telephone" into "telecommunications device" and "interactive computer services." See also Zanghi, supra note 4, 111.

22. Section 223(a) (1) (A), see Zanghi, supra note 4, at 110-11.

23. Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989)

24. [http://www.filteringfacts.org/friendly.htm] (This site provides linkages to several anti-pornography activist groups such as American Center for Law and Justice, American Family Association, Dallas Association for Decency, Enough is Enough, Family Research Council, etc. For instance, Family Research Council is a large national pro-family group that is active in protecting children from Internet pornography. K.I.D.S., which calls for "Keep the Internet Decent and Safe," claims to protect children from Internet pornography in public libraries.)

25. Cathleen A. Cleaver, The Internet: A Clear and Present Danger?, [http://www.frc.org/podium/pd97k2pn.html](This speech was delivered at Boston University on October 29, 1997, as part of a College of Communication Great Debate. As director of Legal Policy at Family Research Council, Cleaver was a lead speaker for the affirmative in the debate over the danger of Internet pornography; however, she willingly admitted that the Internet is a beneficial tool in daily life.)

26. Id.

27. American Booksellers Association v. Hudnut, 598 F. Supp. 1316 (1984). Along this line, MacKinnon argued that federal authority did not treat pornographic depiction degrading a woman classmate as a crime. Michigan undergraduate Jake Baker published a pornographic short story dealing with torture and murder on the Internet. Then he was indicted on charges "for interstate transmission of a threat, not for fantasizing, not for doing something, but for going to do." See Catherine MacKinnon, Vindication and Resistance: A Response to the Carnegie Mellon Study of Pornography in Cyberspace, 83 Geo. L.J. 1959 (1995).

28. Cass R. Sunstein, Pornography and the First Amendment, 4 Duke L.J. 589 (1986). (Sunstein made three points in the problems of pornography: First, pornography harms women who are coerced into and brutalized in producing pornography. Second, pornography increases sexual violence against women and aggregates its level. Finally, pornography negatively affects both men and women in perception of gender role.)

29. Id at 595.

30. See MacKinnon, supra note 27, at 1965.

31. See supra note 1.

32. Id at 1963.

33. Interactive Working Group Report to Senator Leathy, Parental Empowerment, Child Protection and Free Speech in Interactive Media, July 24, 1995. [http://www.cdt.org/cda/iwgrep.txt] (Majority of content on the Internet is aimed for educational, cultural, political, and entertainment value, however, some of the material is not appropriate for children.)

34. The so-called cyber civil liberties groups--such as the ACLU, EFF, EPIC, and CDT-- have recently gained recognition through anti-CDA activities, as new forms of citizen (or social) movements. Considering themselves as civil libertarians, these groups have accelerated their activities in the area of civil liberty issues (e.g. civil rights and privacy, free speech rights, and intellectual property) and became main actors of the CDA free speech movement as a whole. The EFF (Electronic Frontier Foundation, http://www.eff.org), the EPIC (Electronic Privacy Information Center, http://www.epic.org), and the CDT (Center for Democracy and Technology, http://www.cdt.org) were respectively founded in 1991, 1994, and 1995. In early 1996, The ACLU, a long-time advocate of the Bill of Rights since 1920, launched its Web site, "ACLU Freedom Network," and filed the CDA suit. With these actions, the ACLU radically marked its initial step as a cyber civil liberties group.

35. For instance, Nadine Strossen, strong anti-censorship feminist scholar, is president of the ACLU.

36. Cass R. Sunstein, Democracy and the Problem of Free Speech (1993).

37. ACLU Briefing Paper, Number 14, Freedom of Expression in the Arts and Entertainment Sexual Speech, [http://www.aclu.org/library/pbp14.html]

38. Id.

39. Id.

40. John Corry, Doug Bandow, Adam D. Thierer, Daniel E. Troy, and E. Brandt Gustavson, with an Introduction by Edward H. Crane, Speaking Freely: The Public Interest in Unfettered Speech, X (1995).

41. ACLU Brief in Reno I, 1997. [http://www.epic.org/free_speech/CDA/lawsuit/sup_ct_rief.html].

42. Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights 34 (1995).

43. Carlin Meyer, Reclaiming Sex from the Pornographers: Cybersexual Possibilities, 83 Georgetown L.J. 1969 (1995). See note 195 at 2006.

44. Id, note 141 at 1994-95.

45. Id, at 1995-45. .

46. See Strossen, supra note 42, at 57-59.

47. Id at 14.

48. See Meyer, supra note 43, at1994.

49. Id at 1999.

50. Anne Wells Branscomb, Internet Babylon? Does the Carnegie Mellon Study of Pornography on the Information Superhighway Reveal a Threat to the Stability of Society ?, 83 Georgetown L.J. 1995 (1995).

51. See Meyer, supra note 43, at 1998.

52. See Brancomb, supra note 50, at 1956.

53. See supra note 13.

54. There were two presidential commissions to study the regulation of obscenity. They published different results to regulate obscenity, however, regardless of the studies, regulation policy and legal standard has been established by political goals. After President Lyndon Johnson, in 1985, President Ronald Reagan appointed a second presidential commission on pornography. Attorney General Edwin Meese headed it. In its Final Report, the Commission did not require new laws, but suggested to aggressively apply existing statutes to stop the flow of explicit sexual material like Penthouse and Playboy, popular girlie magazines, and sexually oriented films and TV programs. The work of the Commission brought criticism from liberal free speech advocates.

55. Republican Contract with America's support for the Family Reinforcement Act called for stronger child pornography laws, suggesting "increasing the offense level by 2 levels if a computer was used" in purveying child pornography. (Cited in Meyer, see supra note 43, at 1971.)

56. ACLU Action Alert, [http://www.aclu.org/action/filtering 106.html] (Both laws were ruled as unconstitutional. This paper deals with its controversy in part IV.)

57. Id. (Filtering software blocks access to certain online sites which are programmed to restrict access.)

58. See supra note 20. Also see Electronic citation: 1996 FED App. 0032P (6th Cir.) [http://www.eff.org/pub/Legal/Cases/AABBS_Thomases_Memphis] (Thomas case archives containing 4 articles)

59. Mike Godwin, [http://www.eff.org/pub/Legal/Cases/AABBS_Thomases_Memphis] (It has long been held to be constitutional to prosecute pornography vendors located in liberal jurisdictions when they knowingly or intentionally sell obscenity or send it into conservative jurisdictions. Postal inspectors often work a sting to investigate whether pornography vendors distribute obscene materials into their states.)

60. See supra note 58.

61. Id.

62. See Zanghi, supra note 4, at 108.

63. See supra note 58.

64. See supra note 58. Also see Zanghi, supra note 4, at 112-113.

65. See Zanghi, supra note 4, at 114-117.

66. Id. at 115.

67. The New York Act was the telecommunication version of Ginsberg, see supra note 10. (The Supreme Court upheld the constitutionality of a New York statute that prohibited selling to minors (17 years or under) material that was considered "harmful to minors," even if not obscene as to adults.)

68. The US District Court, Southern District of New York entered a preliminary injunction enjoining enforcement of the Act (New York Penal Law 235.21(3) on June 20, 1997. The Supreme Court ruled unconstitutionality of the CDA on June 26, 1997. The New York court mainly discussed violation of the Commerce Clause and left violation of the First Amendment to the Supreme Court dealing with ACLU v. Reno. 117 S. Ct. 2329 (1997).)

69.New York Penal Law 235.21(3) provides: Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sadomasochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination, or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.

70. ALA v. Pataki Injunction Order, June 20, 1997. [http://www.Loundy.com/CASES/ALA_v. Pataki.html]

71. Id.

72. Id. The court stated that commercial use of the Internet is a growing phenomenon, and in terms of the definition of commerce, noted that many users communicating for private, noncommercial purposes are nonetheless participants in interstate commerce by virtue of their Internet consumption.

73. A few weeks later, the ALA (American Library Association), representing twenty-seven plaintiffs and users, filed a similar suit. The two cases were soon consolidated in the Eastern District of Pennsylvania. After the Philadelphia court ruled on the unconstitutionality of the CDA, the case moved directly into the U.S. Supreme Court by the government's appeal. On June 21, 1997, the Supreme Court held that the CDA was unconstitutional. The ACLU represented nonprofit advocates of civil, human, gay and lesbian, and free speech rights. The ALA represented libraries, book publishers, computer and software industries, commercial online service providers, journalism groups, and nonprofit groups and users.

74. 47 U.S.C.A. 223(A) (Supp. 1997) provides: (a)Whoever- (1)in interstate or foreign communications- (B) by means of a telecommunications device knowingly- (i) makes, creates, or solicits, and (ii) initiates the transmission of, "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; . . .223 (d) (d) Whoever- (1) in interstate or foreign communications knowingly- (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under Title 18, or imprisoned not more than two years, or both.

75. ACLU v. Reno, 117 S. Ct. 2329 (1997) ("Reno I"). Reno v. ACLU Supreme Court Decision, June 26, 1997. [http://www2.epic.org/cda_decision.html]

76. The CDA established a defense to the prosecution of a person who "has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors" to their indecent communications under 47 U.S.C. 223(e) (5) (A), and "has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number" 47 U.S.C. 223(e) (5) (B)

77. See supra note 41.

78. See supra note 75.

79. Id.

80. Id. (Justice O'Conner's opinion was from Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L. J. 869 (1996), [http://cyber.harvard.edu/lessig.html]. See supra note10. (In Ginsberg, the Court upheld a New York law that prohibits bookstore owners from selling pornographic magazines to minors, while adults could still buy them. It created a constitutionally suitable adult zone.)

81. See supra note 41.

82. See supra note 75.

83. 47 U.S.C. 231.

84. ACLU v. Reno II Preliminary Injunction Order, Feb. 1, 1999. [http://www.aclu.org/court/acluvrenoII_pi_order.html]

85. 47 U.S.C. 231(a)(1) provides: Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

47 U.S.C. 231(e)(6) provides the definitions of materials "harmful to minors": The term "material that is harmful to minors: means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that --(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political or scientific value for minors. 47 U.S.C. 231(e)(7) defines "minors" as "any person under 17 years of age."

86. Plaintiff's, Memorandum of Law in Support of Their Motion for a Temporary Restraining Order and Preliminary Injunction, [http://www.aclu.org/court/acluvrenoII_tro.html]

87. See supra note 84.

88. See supra note 86.

89. Most plaintiffs provide information to users for free and rely on advertising incomes for their web sites. The number of users (traffic on a Web site) is the most important factor to determine success of the Web. The courts concerned about the development of the Internet and Web.

90. See supra note 20.

91. See supra note 70.

92. The Communications Decency Act and The Child Online Protection Act.

93. See supra note 40. Also see Jerry Berman and Daniel J. Weizner, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, 104 The Yale L. J. 1619, 1801 (1995).

94. Thomas G. Krattenmaker and L.A. Powe, Jr. Converging First Amendment Principles for Converging Communications Media, 104 The Yale L. J. 1719 (1995). (The authors argue that the convergence of communications technologies erase the distinction between different regulatory schemes among the different media, and that the print model will be applicable to the new media as well as the old electronic media, such as broadcasting. Their regulatory principle is also based on users' choices of the content which they want to watch or access.)

95. See supra note 80.

96. See supra note 4 at 115.

97. See supra note 19.

98. Patrick D. Hadley and Rohan Samarajiva, Regulation of On-line Content in the New Trade Environment: NAFTA and Communication Policy, 2:2 The Communication Review 207 (1997).

99. See supra note 80.

100. See Lessig, supra note 80. (The technologies, using encryption, will allow the owner of intellectual property fully to control who accesses the property.)

101. Cass R. Sunstein, The First Amendment in Cyberspace, 104 The Yale L. J. 1757, 1801 (1995).

102. See supra note 84.

103. See Lessig, supra note 80.

104. Internet Family Empowerment White Paper: How Filtering Tools Enable Responsible Parents to Protect Their Children Online, July 16, 1997. [http://www.cdt.org/speech/empower.html]