tion was too broad, attempting to shield those under the age of eighteen from certain content at too great an expense to adults' access to protected speech.22

COPA was deemed unconstitutional by the District Court for the Eastern District of Pennsylvania, which issued a preliminary injunction blocking enforcement of the statute.23 The Third Circuit Court of Appeals affirmed, striking down COPA on the grounds that its use of the community standards test-established by Supreme Court precedent in earlier obscenity cases24— violated the First Amendment when applied to the Internet." The case went before the Supreme Court, which rejected the Third Circuit's reasoning, ruling that using "community standards” to determine what materials on the Internet are "harmful to minors" was not itself a violation of the First Amendment.26 However, the Supreme Court also recognized that COPA might be unconstitutional for other reasons, and thus remanded to the Third Circuit to review the other free-speech issues surrounding the statute. On remand, the Third Circuit again upheld the injunction, reasoning that COPA is neither narrowly tailored nor the least restrictive means available to achieve the government's goal of protecting children from harmful online materials, and also that it impermissibly encroaches on speech that is constitutionally protected for adults. In October 2003, the Supreme Court again granted certiorari to the case to review this opinion by the Third Circuit.29 Commentators speculate that the case may well be ruled unconstitutional. In fact, in his concurring opinion in the case, Justice Anthony Kennedy stated that "there is a very real likelihood that the Child Online Protection Act... is overbroad and cannot survive."31

22. Id. at 874.

23. ACLU v. Reno, 31 F. Supp. 2d 473, 476 (E.D. Pa. 1999) (holding that for the purpose of granting a preliminary injunction, the plaintiffs established a substantial likelihood that COPA is unconstitutional).

24. Roth v. United States, 354 U.S. 476, 489 (1957).

25. ACLU v. Reno, 217 F.3d 162, 173–74 (3d. Cir. 2000).

26. Ashcroft v. ACLU, 535 U.S. 564, 585-86 (2002); see also Warren Richey, Porn Cases Exacerbate Divide on High Court, CHRISTIAN SCI. MONITOR, May 15, 2002, at 2.

27. Ashcroft, 535 U.S. at 585--86; see also Charles Lane, Justices Partially Back Cyber Pornography Law, WASH. POST, May 14, 2002, at A03.

28. ACLU v. Ashcroft, 322 F.3d 240, 265-67 (2003).

29. Ashcroft v. ACLU, 124 S. Ct. 399 (2003).

30. Linda Greenhouse, Justices Give Reprieve to an Internet Pornography Statute, N.Y. TIMES, May 14, 2002, at A17.

31. 535 U.S. at 591.

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ON PROTECTING CHILDREN FROM SPEECH

In June 2003, the Supreme Court ruled that still another law, the Children's Internet Protection Act of 200032 (“CIPA”), was constitutional.33 The case is discussed below, but suffice to say that while the law is the best there is so far, it remains a very flawed approach.

In trying to deal with the tension between free speech and the protection of children, we run into difficulties separating protected and unprotected speech and ensuring that the protection of children will not limit adults' access to speech. Given these rulings, my approach prefers measures that attempt to restrict the manner in which children can access harmful material rather than measures directly restricting the content itself. I proceed by examining five cases in which the issue at hand comes to a head in order to provide grist for the mill of the examination that follows.

II. FIVE CASES

The five cases studied here-those of Loudoun County, Virginia; Kern County, California; the Children's Internet Protection Act; restrictions on tobacco advertising; and television ratings and the Vchip-are not exhaustive. I chose them because they allow me to examine what I consider the two crucial dimensions of the issue at hand: (1) To what extent do the limitations succeed in curbing only the access of children, or are there also "spill over" effects that limit the access of adults? (2) To what extent are the measures involved mandated by the government and designed to directly control (e.g. ban) certain forms of access rather than enhance the ability of parents and educators to guide their charges? The reason for choosing these two dimensions will become evident as the argument unfolds.

The issues in all of these cases are multi-layered because, typically, when the access of minors is limited, the access of adults is also limited to some extent.34 The Courts therefore tend to examine the issue in light of two different questions. In some cases, it is quite constitutional for the access of adults to be curbed for certain materials, such as child pornography.35 The question then becomes whether or

32. Pub. L. No. 106-554, 114 Stat. 2763A-335 (2000).

33. United States v. American Library Ass'n, 123 S. Ct. 2297 (2003).

34. For a full discussion of this concept, see Eugene Volokh, Speech and Spillover, SLATE (July 19, 1996), at http://slate.msn.com/default.aspx?id=2371.

35. The United States Code makes it a crime not only to produce child pornography, which constitutes the sexual exploitation of minors, 18 U.S.C. § 2251 (2000), but also to distribute or possess child pornography, 18 U.S.C. § 2252 (2000). The justification for prohibiting the possession of child pornography as well as its production was laid out in New York v. Ferber, which

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[Vol 79:3 not those who put the limitations in place followed the proper procedures to determine that the material in question should be blocked. However, if the material in question cannot be constitutionally blocked from adults, the question still remains as to whether the same holds true for minors. In looking at the five cases at hand, I focus on the second question.

A. Loudoun County, Virginia Library Case

36

In July 1997, the Board of Trustees of the Loudoun County Library, in Virginia's conservative Loudoun County, adopted a policy requiring all library computers to have blocking software, but allowing the filters to be disabled when adults used the computers, or when minors were accompanied by a parent or guardian.37 The policy was revised later that fall, however, after several members voiced their concern that it was not strict enough.38 The updated policy blocked access to all sexually explicit material, regardless of the patron's age, and required written permission from a parent or guardian for anyone under eighteen who wanted to use the Internet on a computer in a Loudoun County library." Adult patrons who wished to have a specific site unblocked (not the filter itself disabled) needed to submit a written request providing one's name, the site to be unblocked, and the reasons one wanted access; the librarian would then review the requested site and manually unblock it if she deemed it appropriate under the terms of the policy. The stated purpose of the policy was to prevent a “sexually-hostile environment" from forming due to the display of pornographic Internet sites and to exclude pornographic materials from the electronic resources available at the library, as

states that "the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled." 458 U.S. 747, 759 (1982).

36. See Victoria Benning, 2 Conservatives to Leave Library Board, WASH. POST, June 13, 1996, at V1; Justin Blum, For Black, Core Support Was the Difference, WASH. POST, Feb. 8 1998, at V01; Peter Pae, Abortion Rights Group Opens Office in "Conservative Country", WASH. POST, June 20, 1994, at B1.

37. American Civil Liberties Union, Virginia Library Board Adopts Internet Restrictions, http://archive.aclu.org/news/w080597c.html (Aug. 5, 1997).

38. American Civil Liberties Union, Virginia County Restricts Net Access in Libraries, http://archive.aclu.org/news/w102497a.html (Oct. 24, 1997).

39. Id.

40. Mainstream Loudoun v. Bd. of Trs. of the Loudoun County Library, 24 F. Supp. 2d 552, 556 (E.D. Va. 1998).

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11

they had always been excluded from the print resources." Whether deliberately or unwittingly, the policy clearly inhibited the access of adults by requiring that they disclose their name and preferences-in writing-before being able to access sexually explicit material.

Soon after, a grassroots group called Mainstream Loudoun County joined with several civil liberties groups to challenge the library policy in court, alleging that Loudoun County's policy, "as written and as implemented," violated the First Amendment rights of both the Internet site providers blocked by the software and Loudoun County Library patrons wishing to access the Internet by discriminating against protected speech on the basis of content. Furthermore, the plaintiffs argued, even if the library was justified in blocking the content in question, they did not follow the correct procedures in doing so; therefore the policy constituted an unconstitutional prior restraint.43

46

In November 1998, the U.S. District Court for the Eastern District of Virginia declared Loudoun County's policy overly broad and unconstitutional." The District Court found that the Loudoun County policy did involve First Amendment issues because the use of blocking software was more akin to an active decision to remove materials from the library than to a passive decision simply not to acquire them." It also held that strict scrutiny was the appropriate standard by which any restriction of this kind of speech should be judged. The Court then proceeded to evaluate the specific speech prohibited by the policy: obscenity, child pornography, and material deemed "harmful to juveniles" by Virginia statutes. It found that while neither obscenity nor child pornography are protected by the First Amendment, the definition of "harmful to juveniles" in the Virginia Code includes speech that the courts have held to be constitutionally protected for adults.” Having established that at least some of the content blocked by the Library was constitutionally protected, the Court then applied a three-prong test to determine whether the limitations imposed were constitutional. The Court asked: (1) whether the inter

41. Loudoun County Public Library, Policy on Internet Sexual Harassment, http://www.loudoun.net/mainstream/Library/summintpol.htm (Oct. 20, 1997).

42. Mainsteam Loudoun, 24 F. Supp. 2d at 557.

43. Id.

44. Id. at 570.

45. Id. at 561.

46. Id. at 562.

47. Id. at 564.

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[Vol 79:3 ests asserted by the state, in this case "minimizing access to illegal pornography" and "avoidance of creation of a sexually hostile environment," are compelling; (2) "whether the limitation[s] [imposed by the policy are] necessary to further those interests"; and (3) whether the policy is "narrowly tailored to achieve those interests."

948

The Court found that though the policy did not claim to further a compelling interest, it failed to meet the second and third parts of the test." Loudoun County did not demonstrate to the Court's satisfaction that without the policy a sexually hostile environment might exist in the libraries, individuals would access obscene material or child pornography, or minors under the age of eighteen would view materials that are harmful to them. Nor was the Court persuaded that the means the County decided upon were narrowly tailored to meet the compelling government interests." The judges found that there were less restrictive means available to shield children from harmful material, such as privacy screens, casual monitoring of Internet activity by librarians, or installing filtering software on only some of the computers.52

They also ruled that the policy was "over inclusive because, on its face, it limits the access of all patrons, adult and juvenile, to material deemed fit for juveniles."" Quoting Reno v. ACLU, the Court noted that, in this instance, the spillover onto the ability of adults to receive protected speech and material was too great, for "[t]he interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."54

In the case of Loudoun County, the policy promulgated by the Library Board empowered librarians to decide what speech to censor without providing "sufficient standards and adequate procedural safeguards."" In other words, librarians were given full discretion to

48. Id. at 564-66.

49. Id. at 567-68.

50. Id. at 565 (requiring that harms be "real, not merely conjectural" (quoting Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) and Johnson v. Los Angeles Fire Dep't, 865 F. Supp. 1430, 1439 (C.D. Cal. 1994))).

51. Id.

52. Id. at 568.

53. Id. at 567.

54. Id. at 565 (quoting Reno v. ACLU, 521 U.S. 844, 885 (1997)).

55. Id. at 568-69.