Bruce Taylor*

The National Law Center for Children and Families maintains that the Child Online Protection Act of 1998 (COPA) is a constitutionally valid federal adoption of the traditional protections for minors that have existed for over thirty years in state Harmful To Minors (HTM) laws. This law will protect minor children from unrestricted access to the free pornographic "teaser" pictures now openly available at commercial porn sites on the World Wide Web. The law was designed to require such commercial porn sellers to take a credit card or adult PIN or access number in order to protect a visiting child or teenager from seeing the graphic sex pictures on the front pages of the commercial porn WWW sites.

COPA is carefully limited in scope to deal only with this problem as it exists on the Web and only for commercial sellers of pornography. The technical capability of commercial WWW sites to use credit cards and PIN/codes was recognized by the Supreme Court in last year’s decision in Reno v. ACLU, 117 S. Ct. 2329 (1997). The Act applies only to Web sales sites and excludes other Internet, Usenet, email, BBS, chat, and online services. The Act applies only to commercial sellers of harmful pornography and excludes all non-commercial, non-profit, educational, governmental, and private communications. Finally, this Act adopts the constitutionally valid definition of "harmful to minors" to limit its reach to pornography that is not protected speech for juveniles. COPA’s intentionally narrow focus is a "least restrictive means" to control the availability to minors of harmful pornography on the front pages of the porn syndicate’s Web sites.

It is interesting to note that COPA separately incorporates both the adult "Miller" test for what is "obscene," from Miller v. California, 413 U.S. 15, at 24-25 (1973), Smith v. United States, 431 U.S. 291, at 300-02, 309 (1977), and Pope v. Illinois, 481 U.S. 497, at 500-01 (1987), as well as the traditional "Millerized-Ginsberg Test" of "harmful to minors" first approved thirty years ago in Ginsberg v. New York, 390 U.S. 629 (1968). The Act is thus applicable both to hard-core pornography that is obscene and soft-core pornography that is "Harmful To Minors" even if not obscene for adults.

Though HTM laws have heretofore been State statutes and city ordinances, the "harmful to minors" standard is familiar to the federal courts, which have routinely upheld such laws. See, for example: Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 117 S.Ct. 1249 (1997), upholding California’s HTM statute regulating "adult" sidewalk vending machines; American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), upholding Georgia HTM statute; American Booksellers Ass’n v. Com. of Virginia, 882 F,2d 125 (4th Cir. 1989), on remand from the Supreme Court, 488 U.S. 905 (1988), upholding Virginia’s HTM display law as construed by the Supreme Court of Virginia in Commonwealth v. American Booksellers Ass’n, 372 S.E.2d 618 (Va. 1988), which interpreted the law and materials on certified questions from the U.S. Supreme Court, 484 U.S. 383 (1988); Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389 (8th Cir. 1985), upholding city HTM ordinance; M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir. 1983), upholding city HTM ordinance.

Issues of some "men’s" magazines have been found "obscene" even for adults and are obviously kept from minors by the retail trade across the Country. See Penthouse v. McAuliffe, 610 F.2d 1353 (5th Cir. 1980), and Penthouse v. Webb, 594 F. Supp. 1186 (N.D. Ga. 1984), City of Urbana v. Downing, 539 N.E.2d 140, 149-50 (Ohio, 1989), State v. Flynt, 264 S.E.2d 669, 679 (Ga. App. 1980), cert. denied, 449 U.S. 888 (1980).

Viewpoint discrimination and suppression of ideas are not permitted under the "harmful to minors" test and minors are entitled to sexual information that has serious value for them, regardless of how controversial they may be for their political or sexual viewpoints. See Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), and Board of Education v. Pico, 457 U.S. 853 (1982).

It has also been recognized that the "harmful to minors" test must consider serious value in relation to the age group to which it is directed. This was a major holding of the Supreme Court of Virginia in finding that several literary and political works were not harmful to minors in Commonwealth v. American Booksellers Ass’n, 372 S.E.2d 618, 622 (Va. 1988)(the books included Ulysses, The New Our Bodies, Ourselves, Am I Normal?, the court concluded that although they vary widely in merit, none of them lacks "serious literary, artistic, political or scientific value" for a legitimate minority of older, normal adolescents."). See also American Booksellers v. Webb, supra, 919 F.2d at 1504-06.

Serious sex education, AIDS/STD information, disease prevention, news accounts of sexual offenses or legal questions, and political or social treatments of sexual issues would not be "harmful to minors" because they have serious literary, artistic, political, or scientific value for minors. Therefore, works such as the presently controversial "Starr Report" released as a public document of political significance to the press and the World Wide Web would not be affected by COPA, since the "Starr Report" is not "harmful to minors." It is not "directed" or "pandered" to prurient interests and doesn’t describe the conduct in "patently offensive" ways. Grand jury language is clinically graphic, not pruriently pornographic to the "average person." Furthermore, no reasonable person would find such governmental, newsworthy, public information as lacking intrinsically serious political value, for minors as well as adults. The report is not legally "harmful to minors" under existing state laws and cannot be harmful to minors under the new federal law. COPA will not affect the commercial and public re-distribution of the "Starr Report" or any other such serious work.

The Court in Reno v. ACLU mentioned that Congress could protect juveniles from materials that are "harmful to minors," at least on the Web’s commercial sites. This is no more than State display laws require merchants to do when selling pornography to adults that would be harmful to minors. Such an adult sales method is what this Act would extend to the commercial Web, as it fairly should.

It is, therefore, the legal opinion of the attorneys of the National Law Center for Children and Families that COPA is a fair, effective, and constitutionally valid law and that the Child Online Protection Act will be upheld by the Supreme Court.

*Bruce A. Taylor is the President & Chief Counsel of the National Law Center for Children and Families.