D.A. Jepsen Ronald D. Maines
M. Kendall Brown (Counsel of Record)
ENOUGH IS ENOUGH R. Shawn Gunnarson
4103 Chain Bridge Road MAINES & LOEB, PLLC
Suite 420 2300 M Street, NW, Suite 900
Fairfax, VA 22030 Washington, DC 20037
Counsel for Amici Curiae
TABLE OF CONTENTS
TABLE OF CONTENTS
ARGUMENT 5
CASES
ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) passim
Brown v. Bd. of Education, 347 U.S. 483 (1954) 13
Butler v. Michigan, 352 U.S. 80 (1957) 3
City of Los Angeles v. Preferred Commun. Inc., 476 U.S. 488 (1986) 6
Denver Area Educ. Telecomm. Consortium, Inc. v. F.C.C. 116 S.Ct. 2374 (1996) 28, 29
FCC v. Pacifica Found.,438 U.S. 726 (1978) 6
Ginsburg v. New York, 390 U.S. 629 (1968) 19
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) 6
Jacobellis v. Ohio, 378 U.S. 184 (1964) 5
Kovacs v. Cooper, 336 U.S. 77 (1949) 6
Miller v. California, 413 U.S. 15 (1973) 5
New York v. Ferber, 458 U.S. 747 (1982) 6, 28
Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973) 10
Sable Comm., Inc. v. F.C.C., 492 U.S. 115 (1989) 5, 6
Turner Broadcasting Sys., Inc. v. FCC, 114 S.Ct. 2445 (1994) 6, 28
United States Department of Justice, Post Hearing Memorandum of Points and Authorities, ACLU v. Reno, 929 F. Supp. 824 (1996) 3
United States v. National Treasury Employees Union, 115
S.Ct. 1003 (1995) 5, 28
STATUTES
47 U.S.C. § 223
§ 223 (a)(1)(B) 26
OTHER AUTHORITIES
Bergman, Jerry, Ph.D., The Influence of Pornography on Sexual Development: Three Case Histories, IX Family Therapy 3, 1982 10
Brooks, Gary R., Ph.D., The Centerfold Syndrome (1995) 12
Burgess, Ann, Ph.D., Pornography-Victims & Perpetrators, Symposium on Media Violence & Pornography, Proceedings Resource Book and Research Guide (D. Scott, ed., 1984) 18
Carnes, Patrick, Don't Call it Love: Recovery from Sexual Addictions ( 1991) 14
Clapes, Anthony L., The Wages of Sin: Pornography and Internet Providers, Computer Lawyer, July 1996 26, 27
Clark, Charles S., Regulating the Internet, CQ Researcher, June 30, 1995 9
Clark, L. & D. Lewis, Rape: The Price of Coercive Sexuality (1977) 16
Clary, Susan, 2 Teens Charged in Computer Porn Case St. Petersburg Times, May 21, 1996 20
Cline, Victor B., Ph.D., Pornography's Effects on Children and Adults (1994) 11
Cline, Victor, Ph.D., Pornography Effects: Empirical & Clinical Evidence (1990) 14, 18
Clinton, President William J., State of the Union Address, (Jan. 23, 1996) 22
Davis, K. E., and G. N. Braucht, Exposure to Pornography, Character and Sexual Deviance, Technical Reports of the Commission on Obscenity and Pornography, Vol. 7, 1970 17
Donnerstein, Edward, Aggressive Erotica and Violence Against Women, 19(2) Journal of Personality and Social Psychology (1980) 17
Donnerstein, Edward, Statement Made at Public Hearing on Ordinances to Add Pornography as Discrimination Against Women, Minneapolis City Council, Sess. 1, Dec. 12, 1983 15, 18
Enhanced CU-SeeMe at HTTP://www.cu-seeme.com. in White Pine Software Homepage at HTTP://www.wpine.com. 25
Eysenck, H. J., Robustness of Experimental Support for the General Theory of Desensitization, in Pornography and Sexual Aggression (1984) 14
Facts in Brief, The Alan Guttmacher Institute (1994) 16, 17
Flint, Anthony, Skin Trade Spreading Across U.S., Boston Sunday Globe, Dec. 1, 1996 9
Garcia, Luis T., Exposures to Pornography and Attitudes About Women and Rape: A Correlative Study, Vol. 22, 1853, AG (1986) 15
Harrell, Ann, Library Net Access Up to Parents, Lincoln J. Star, Jan. 7, 1997 21
Katayama, Fred, The Not-So-Worldly Web, CNN: The Financial Network (Dec. 17, 1996) at HTTP://cnnfn.com/hotstories/deals/9612/17/worldwide__web__pkg/index.htm) 2
Linz, Daniel, Exposure to Sexually Explicit Materials and Attitudes Toward Rape: A Comparison of Study Results, 26(1) Journal of Sex Research (Feb. 1989) 16
Log-on Data Corporation, White Paper on X-Stop, October 1996 8
Malamuth, Neil M., & Joseph Ceniti, Repeated Exposure to Violent and Non Violent Pornography: Likelihood of Raping Ratings and Laboratory Aggression Against Women, 12 Aggressive Behavior, UCLA, (1985) 11, 15
Marshall, W. L., Ph.D., Pornography and Sexual Offenders, Pornography: Research Advances and Policy Consideration (D. Zillmann & J. Bryant, eds., 1989) 19
Mason, John O., Ph.D., Dr. P. H., Assistant Secretary for Health, Address to the Religious Alliance Against Pornography, The Harm of Pornography (Oct. 26, 1992) 11
McGaugh, James L., Univ. of Calif., Irvine, Preserving the Presence of the Past, 38 American Psychologist (1983) 12
Mendels, Pamela, Newsgroup Smut Poses Campus Quandary, N.Y. Times, Dec. 29, 1996 26
Montgomery, Kathryn, & Shelley Pasnick, Center for Media Education, Web of (Mar. 1996) 3, 20
Nielsen Media Research Interactive Services, Internet Hyper-Growth Continues, Fueled by New, Mainstream User, Aug. 13, 1996, at HTTP://www.nielsen.com 2, 8
Nielsen Media Research Interactive Services, The Commercenet/Nielsen Internet Demographics Survey,
(Aug. 13, 1996) at HTTP://www.nielsen.com 2
Oversight Hearing on the High Performance Computing and Communications Program and Uses of the Information Highway, before the Subcomm. on Science, Technology, and Space of the Senate Comm. on Commerce, Science, and Trans., 104th Cong., 1st Sess., 26 (1995) 2
Penthouse Magazine Homepage at HTTP://www.penthouse.mag. 8
Postman, Neil, The Disappearance of Childhood (1994) 13 QNSnet Terms & Conditions, at HTTP://www.qna.net.80/pricing/termpass.htm 24
The Report of the Surgeon General's Workshop: Pornography and Public Health, June 22-24, 1986 18
Rose, Lance, Netlaw (1995) 24
S. Rep. No. 102-372, 102nd Cong., 2nd Sess. 23 (Aug. 12, 1992) (Pornography Victims Compensation Act of 1992, SenateComm. on the Judiciary) 17
Safe Computing, Internet, Sept. 1996 9
Schmidt, Howard A., 52 Government Exhibits Appended to Direct Testimony Declaration, April 9, 1996 24
Simons, John, The Web's Dirty Secret, U.S. News & World Report, Aug. 19, 1996 7, 8, 25
Tejada, Carlos, Are My Kids Safe, Wall Street Journal, Dec. 9, 1996 20
Utah Digital Signature Act, 46 Utah Code Ann. Ch. 3 (1996) 25
Vesely, Rebecca, Library Blocks Porn, and May Block Rights, Jan. 7, 1997, at HTTP://www.com/news/story/1289 html 21
Westside (Omaha, NE) Community School's Application for Student Internet Account, Statement of Rights and Responsibilities (Amended May 2, 1994) 22
Zillmann, D., Effects of Prolonged Consumption of Pornography,
in Pornography: Research Advances and Policy Considerations
(Erlbaum, 1989) 16, 17
Pursuant to Rule 37.3 of this Court, Enough Is Enough, et al.
respectfully submit this brief amici curiae in support
of Appellants. Written consent to the filing of this brief has
been granted by counsel for all parties. Letters of consent have
been lodged with the Clerk.
Amici comprise a broad coalition of public interest groups
and individuals committed to advocating legal and social reforms
that advance and defend women and children against sexual exploitation,
abuse, and degradation. While representing diverse political perspectives,
we are agreed that this Court's decision in the instant case will
directly affect the welfare of our society. A detailed description
of the interests of those represented herein is set forth in the
Appendix. We believe that our perspective will complement the
briefs of the parties and assist the Court in the sound resolution
of this case.
The Internet is transforming how Americans communicate and learn.
Because children often demonstrate a proficiency in computer skills
surpassing that of their parents, the Internet is quickly becoming
a medium of the young. Indeed, evidence indicates that the Internet
is "more powerful in attracting the attention of children
and youth than any other prior electronic system." Along
with its unique opportunities, however, the Internet carries unique
threats. The Department of Justice has succinctly identified the
most serious danger:
Never before in the history of telecommunications media in the
United States has so much indecent (and obscene) material been
so easily accessible by so many minors in so many American homes
with so few restrictions.
Because this unprecedented rise in the quantity of sexually-explicit
speech available to children threatens their welfare, the stakes
in this proceeding could not be any higher. In a more innocent
age the Court was concerned "not to reduce the adult population
. . . to reading only what is fit for children." Butler
v. Michigan, 352 U.S. 380, 381 (1957). Today, unfortunately,
the opposite concern is more apt-that we not condemn children
to reading only what is fit for adults. In the decision below,
the court's response to this concern is troubling. Judge Dalzell,
for example, described the Communications Decency Act as a cure
worse than the disease, questioning whether Congress had identified
a harm in genuine need of treatment: "[H]ere, however, I
am hard-pressed even to identify the disease." ACLU v.
Reno, 929 F. Supp. 824, 881 (1996). Had the district court
more carefully considered how sexually-explicit material on the
Internet endangers children, the court would not have found that
Appellee's constitutional interests so easily outweigh the Government's
compelling interest in protecting children from such harm.
Sexually-explicit material on the Internet poses a unique danger
to children, demanding an innovative response from Congress. In
its prior decisions, this Court has confirmed Congress's authority
to address compelling concerns by enacting laws adapting the application
of the Free Speech Clause in a novel communications medium. The
Internet's capacity to collect information from numberless sources
enables children to view endless amounts of sexually-explicit
material without leaving home. As we will show, a significant
body of carefully-documented research demonstrates that exposure
to sexually-explicit material substantially harms children. Without
effective laws to prohibit the distribution of such material to
children, many children will suffer the harms we describe. That
tragic result cannot be reconciled with Appellee's asserted interest
in preserving unrestricted access by children to sexually-explicit
materials over the Internet.
The Court can vindicate the Government's compelling interest in
protecting children within the limits set by the First Amendment.
We urge that the Government's compelling interest in protecting
children be given the predominant weight it deserves in this communications
medium. A less careful approach by the Court will leave children
unprotected in the Internet jungle.
The First Amendment permits Government to regulate sexually-explicit
but non-obscene speech to promote a compelling interest where
it has chosen the least restrictive means of effective regulation.
See Sable Communications v. FCC, 492 U.S. 115, 126
(1989). The Government's compelling interest springs from the
harms visited upon children from their access to sexually-explicit
material. As Amici demonstrate below, "the recited
harms are real, not merely conjectural," and the regulation
will "alleviate these harms in a direct and material way."
United States v. National Treasury Employees Union, 115 S.Ct.
1003, 1017 (1995). We document herein the kinds of injuries that
exposure to sexually-explicit materials inflict on children and
show how the CDA provides a necessary and feasible means of protecting
children from such harm.
Under this Court's precedents, protecting children from exposure
to harmful sexually-explicit materials undeniably qualifies as
a compelling state interest. "It is evident beyond the need
for elaboration that a State's interest in 'safeguarding the physical
and psychological well-being of a minor' is 'compelling.'"
New York v. Ferber, 458 U.S. 747, 756-57 (1982)) (quoting
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607
(1982)). Moreover, as the Court has explained, "This interest
extends to shielding minors from the influence of literature that
is not obscene by adult standards." Sable, 492 U.S.
at 126. On this score, Justice Scalia has explained that the Government's
interest in preventing children from exposure to technically non-obscene
sexually-explicit material increases as the category of obscenity
comes to be defined more and more narrowly. See id. at
132 (Scalia, J., concurring).
Further, where a communications medium is being regulated,
the characteristics of the specific technology may be assessed
in examining the constitutionality of the regulation. See,
e.g., Kovacs v. Cooper, 336 U.S. 77, 97 (1949); Turner
Broadcasting Sys., Inc. v. FCC, 114 S.Ct. 2445, 2456 (1994);
F.C.C. v. Pacifica Found., 438 U.S. 726, 749 (1978) ("We
have long recognized that each medium of expression presents special
First Amendment problems") (citation omitted); City of
Los Angeles v. Preferred Communications, Inc., 476 U.S. 488,
496 (1986) ("Different communications media are treated differently
for First Amendment purposes."). This line of cases leaves
room to tailor Free Speech doctrine to the attributes of a particular
communications medium such as the Internet.
Against the background of these doctrinal parameters, we consider
below the nature of the Internet, its accessibility to children,
the harmful effects of indecent and obscene materials on children,
and the feasibility of technological protections. This analysis
will demonstrate that the district court gravely undervalued the
nature of the Government interest at stake and, therefore, erred
in its assessment of the CDA's constitutionality. Given the paramount
stature of that interest, the Court should rule that the Government's
interest in protecting children in the context of this communications
medium outweighs countervailing concerns. By upholding the narrowly
tailored provisions of the CDA, this Court will clarify that Congress
did not infringe upon the values protected by the First Amendment
when it acted to protect children against harmful access to, or
receipt of, patently offensive, sexually-explicit materials on
the Internet.
A. The Internet Contains Virtually Endless Amounts of Sexually-Explicit
Speech that Has Attracted a Large Audience and Produced Enormous
Revenues
By allowing a user to collect information from numberless sources,
the Internet in effect gathers together an ocean of sexually-explicit
speech, ranging from the mildly titillating to unqualified hard-core
pornography. The Web contains more than 600 merchant sites for
pornography. This number, however staggering it might first appear,
continues to grow. Log-on Data Corporation's Internet patroller,
known as Mud Crawler, reports finding approximately 39 new pornographic
Web sites per day.
This vast new pornography resource has already attracted a remarkably
large and devoted audience. U.S. News and World Report found
in 1996 that "about one-fifth of the Web audience . . . says
it regularly seeks out adult material on-line." According
to a Nielsen Media Research survey, Penthouse magazine
has the most popular World Wide Web site on the Internet, registering
more than two million visits during a period from December 21,
1995 to January 20, 1996. Like most such sites, Penthouse
places no restrictions that prevent children from viewing its
lurid images.
The prospect of so many eager voyeurs has presented the merchants
of sex with an unprecedented commercial opportunity, and they
have been cashing in with enormous success. In December, 1996,
the Boston Sunday Globe reported that pornographic entertainment
on the Internet constituted the third largest sector of sales
in cyberspace, with estimated annual revenues of $100 million.
Such marketing success has fueled an increase in the size of the
pornography industry-$10 billion annually, according to
conservative estimates.
These disturbing trends have resonated with the American people.
A 1995 Newsweek poll found that 85% of Americans are concerned
about pornography being too available to young people through
the Internet, and 80% are concerned about "virtual stalking"
through e-mail messages. Internet magazine warns:
Few parents-no matter how liberal their political views-want their
children exposed to some of the material that's freely available
at the fringes of the Internet. No educator can deny the problem:
With just a few clicks, a youngster can summon images that would
be ruled offensive by any school board anywhere.
The public is right to be concerned. As we demonstrate below,
exposure to sexually-explicit speech on the Internet will gravely
harm children.
B. Many Children Will Be Harmed from Exposure to Sexually-Explicit
Speech on the Internet.
Exposure to pornography harms children. An individual's sexual
identity develops gradually through childhood and adolescence.
As they grow up, children are especially susceptible to influences
affecting their development. Moreover, information about sex in
schools, and presumably, in most homes, comes in age-appropriate
incremental stages based on what parents, educators, physicians,
and social scientists have learned about child development. Pornography
distorts this natural development of personality.
[I]f the early stimulus is pornographic photographs, the adolescent
can be conditioned to become aroused through photographs. Once
this pairing is rewarded a number of times, it is likely to become
permanent. The result to the individual is that it becomes difficult
for the person to seek out relations with appropriate persons.
When pornography is readily accessed, this "simple"
way to gratify sexual desires can lead to a deviation from healthy
development in which "pictures replace people." Because
pornography encourages neither tenderness nor caring (and typically
quite the opposite), it can negatively influence a child's understanding
of his own sexuality and the sexuality of those around him.
To children, pornography "educates" by presenting new
information. That information about human sexuality is not only
highly inaccurate, but misleading. Photographs, videos, magazines,
and virtual games that depict rape and the dehumanization of females
in sexual scenes constitute powerful but deforming tools of sex
education. In addition, pornography portrays unhealthy or antisocial
kinds of sexual activity, such as sadomasochism, abuse, and humiliation
of females, involvement of children, incest, group sex, voyeurism,
sexual degradation, bestiality, torture, objectification, and
sanction of "the rape myth." Unlike the sort of education
provided in a classroom, exposure to pornography teaches children
the rudiments of sex without adult supervision or moral guidance.
Pornography inundates children's minds with graphic messages about
their own bodies and their own sexuality. These images create
chemically encoded messages on the brain that can remain in a
child's memory through adulthood. Children generally do not have
a natural sexual capacity until between 10 and 12 years old. Pornography
unnaturally accelerates that development. By short-circuiting
the normal development process and supplying misinformation about
their own sexuality, pornography leaves children confused, changed,
and damaged. Indeed, clinical research suggests that exposure
to pornography can permanently damage even healthy and innocent
children.
[T]here seems little doubt that there are at least some people-even
those who are initially healthy-who can be eventually harmed through
repeated exposure to pornography. In my clinical work, I find
pre-teen or adolescent males, who are mostly innocent and uninformed,
being particularly vulnerable to these negative and addictive
effects.
What we know regarding the sexualization of children and the effects
of pornography on adults demonstrates that allowing children to
consume pornography will have baneful social consequences.
Our children live in a society whose psychological and social
contexts do not stress the differences between adults and children.
We may safely assume that media have played an important role
in the drive to erase differences between child and adult sexuality
. . . . [S]ex is transformed from a dark and profound adult mystery
to a product that is available to everyone-let us say, like mouthwash
or underarm deodorant. One of the consequences of this has been
a rise in teen-age pregnancy . . . . Another and grimmer consequence
of adult-like sexual activity among children has been a steady
increase in the extent to which youth are afflicted with venereal
disease. . . . The traditional restraints against youthful sexual
activity cannot have great force in a society that does not, in
fact, make a binding distinction between childhood and adulthood.
In addition, one of the more insidious attributes of pornography
is that it creates an appetite that, for many, is self-perpetuating
and addictive. One study revealed that among 932 sex addicts,
90% of the men and 77% of the women reported pornography as significant
to their addictions. The study also revealed that two common elements
in the early etiology of sexually addictive behavior are childhood
sexual abuse and frequent pornography accompanied by masturbation.
The habitual or frequent consumption of pornography can result
in a diminished satisfaction with milder forms and a corresponding
desire for more deviant, violent, paraphiliac, and other illegal
materials that are now easily accessible over the Internet in
newsgroups free of charge. Finally, exposure to pornography can
lessen one's repulsion to it and one's recognition of its potential
harms.
The danger to children stems, at least partly, from disturbing
changes in attitude which pornography causes. Replicated studies
have demonstrated that exposure to significant amounts of increasingly
graphic forms of pornography has a dramatic effect on how adult
consumers view women, sexual abuse, sexual relationships, and
sex in general. These studies are virtually unanimous in their
conclusions:
If you expose male subjects to six weeks' worth of standard hard-core
pornography . . . you find changes in attitudes towards women.
The subjects become more callused towards women. You find a trivialization
towards rape, which means after six weeks of exposure, male subjects
are less likely to convict for a rape, less likely to give a harsh
sentence to a rapist if in fact convicted.
This dulling of the moral senses can affect the safety of women.
As youth consume dramatically greater quantities of pornography,
and as the Internet exposes them to a greater range of violent
and deviant forms of sexual conduct than ever before available,
it is not irrational to fear that society could regress in its
sense of the viciousness and immorality of rape. Children and
adolescents who "learn" by early exposure to pornography
will more easily accept the idea of forced sex as reasonable and
justified. Indeed, studies have found that exposure to hard-core
pornography has a similar effect on women, who also become less
sympathetic to rape victims in the evaluation of rape trials.
The biases encouraged by pornography "may contribute to the
reluctance of many women to report rape and to the relatively
low likelihood that such offenses will be classified as 'founded'
cases."
Because pornography encourages sexual expression without responsibility,
it endangers children's health. Rates of venereal disease and
rape are already extremely high. In the United States, about one
in four sexually experienced teenagers acquires an STD every year,
resulting in three million cases of teenage STDs. Infectious syphilis
rates have more than doubled among teenagers since the mid-1980s.
One million American teenage girls become pregnant each year.
As more and more children become exposed not only to soft-core
pornography, but also to explicit deviant sexual material, society's
youth will learn an extremely dangerous message: sex without responsibility
is acceptable.
Besides the health dangers, exposure to pornography threatens to make children the victims of crime. Research gathered over the past few decades demonstrates that pornography contributes to sexual assault, including rape and the molesting of children. Researchers universally acknowledge that sexual violence is at least partly attributable to the consumption of pornography. "Virtually all lab studies establish a causal link between violent pornography and the commission of violence. This relationship is not seriously debated in the research community." The June 1986 Report of the Surgeon General's Workshop: "Pornography and Public Health," reported that "the circumscribed links between exposure to pornography and aggression toward women
. . . have been scientifically demonstrated." The reality
that repeated exposure to hard-core pornography is a significant
factor in the commission of sex crimes against women is reason
enough for concern. But sexual violence victimizes children as
well as women. Child molesters often use pornography to seduce
their prey, to lower the inhibitions of the victim, and as an
instruction manual. "Eighty-seven percent of female child
molesters and 77% of male child molesters studied admitted to
regular use of hard-core adult pornography."
In short, the scientific research is overwhelming that children
are harmed by pornography in a multiplicity of ways. The risk
of that harm coming to pass is magnified to an unprecedented degree
because of the accessibility to children of indecent and obscene
materials on the Internet.
C. Neither Parental Supervision Nor Software Blocking Programs,
Standing Alone, Can Effectively Guard Children From Sexually-Explicit
Material on the Internet.
End-user software blocking programs do not effectively prevent
children from accessing on-line pornography. Such software is
woefully ineffective because on-line pornography distributors
play a "shell game" of setting up new sites whenever
they are on a list of blocked sites, and because many children
are computer-savvy enough to disable or bypass the software. Even
if software could be created that could out-guess and out-maneuver
the best efforts of those who seek to defeat it, its effectiveness
would still be limited to those children whose parents had the
knowledge and financial resources to use it, along with the money
and time to maintain the necessary software updates.
Moreover, even the most diligent parental supervision and the
best content-filtering software at home do not prevent a young
person determined to find pornography on the Internet. Home computers
are only one port of entry into cyberspace. Children can reach
the Internet in the homes of their friends and neighbors, where
computers may have no filters installed. Last year, two 15-year
old boys in St. Petersburg, Florida downloaded pictures of child
pornography and bestiality from the Internet onto floppy disks
and took them to school, where they then sold them for $5 each.
Limited end-user blocking software is available in the marketplace
to install on home computers, yet it was clearly ineffective in
protecting the Florida youths or their classmates from dangerous
material, just as it will be with the millions of other children.
This is not surprising, given the reckless attitude of distributors
of pornography on the Internet that they bear no legal duty to
prevent children from accessing their materials.
Indeed, assuring children filter-free access to the Internet threatens
to become an institutionalized policy. The American Library Association,
the lead Plaintiff in ALA v. U.S. Dept. of Justice, "discourages
public libraries around the country from using blocking software."
The American Civil Liberties Union is contemplating suit against
a Florida library system for installing filtering software-the
very means the ACLU, in its arguments to the court below, claimed
are sufficient to protect children from pornography. The Mayor
of Lincoln, Nebraska has announced that he "does not think
the city should install software filters to block access to offensive
materials through Internet links at Lincoln City Libraries computer
terminals;" instead, "monitoring Internet use by a youngster
is a parent's job." Although parental supervision in a public
library may address the danger for some children, it is manifestly
impractical for obvious reasons. Rather than run the risks, many
parents may steer clear of the public library altogether.
President Clinton has pledged that every American classroom will
be connected to the Internet by the year 2000. Parents cannot
monitor their children's activities on-line while they are at
school. Although some schools have taken advantage of content-filtering
software, others have policies that prohibit its use. For
example, in one school district, a letter was sent home with students
notifying parents that the children will have access to the Internet,
that sexually explicit material is potentially accessible, and
that the only way parents can be reasonably sure their children
are not exposed to material that is "illegal, sexually explicit,
or offensive to certain racial or ethnic groups" is to refuse
to sign the school's hold harmless agreement-in which case the
child would not be given access to the Internet. In this school
district, the parents' only options are to risk their children's
exposure to harmful material or deny them the educational opportunities
offered by the Internet.
For these reasons, the district court's suggestion that "parents
can supervise their children's use of the Internet or deny access
until they reach an appropriate age," ACLU v. Reno,
929 F. Supp. 824, 883 (E.D. Pa. 1996), is untenable. On the one
hand, neither parental supervision nor content-filtering software
is sufficient to prevent children from accessing pornography on
the Internet. On the other hand, denying children access to the
Internet deprives them of a vital educational resource. The legal
restrictions imposed by the CDA are not only helpful but necessary,
if children are to be effectively shielded from pornography and
the dangers it poses, while benefitting from the Internet's vast
power to convey knowledge.
D. Compliance With The CDA Is Technically Feasible
The district court's conclusion that compliance with the CDA is
technically and economically infeasible is erroneous. Judge Dalzell's
theoretical predicate for that proposition-that "the strength
of the Internet is chaos," ACLU, 929 F. Supp. at 883-ignores
the essential characteristics of the Internet. Rather than chaos,
the defining characteristic of this technology is a critical orderliness,
without which it would not work. A programmer attempting to format
a Web site in anything other than hypertext markup language (HTML),
for example, would produce only incompatibility with the Internet.
The Internet "exists and functions as a result of the fact
that hundreds of thousands of separate operators of computers
and computer networks independently decided to use common data
protocols." Id. at 832. The word "independent"
does not reflect a random, chaotic, or spontaneous coalescing
of elements, but rather the conscious decisions of intelligent
human beings to align with technical standards promulgated by
other intelligent human beings to advance a common objective.
It is thus incorrect that the Internet does not contain sufficient
orderliness for compliance with the CDA to be feasible.
For instance, the lower court's conclusion that the CDA is unconstitutional
was based in part on the perceived difficulties of age-verification,
yet the absence of age-verification on the majority of sites on
the Internet is the result of the apparent preference of the Internet
culture, rather than any technological limitation. That this is
so is evident in the number of sites where age-verification is
already in place. A 1995 guidebook on Internet law advised Internet
Service Providers (ISPs) that "making indecent messages available
is not especially risky, as long as they are effectively denied
to minors." Some ISPs are already establishing age-restricted
areas within their servers for "adults-only" materials.
Many commercial Web sites and bulletin board services that utilize
credit card verification currently comply with the CDA. Commercial
and non-commercial Web content providers are already beginning
to use adult verification services, digital signatures, and video
reflector programs (providing visual verification of age and identity)
that allow for age identification.
The Usenet is a controlled access, closed, proprietary, commercial,
subscription service that is under the direct control of each
ISP, made available by the ISP to its subscribers or users. For
an ISP to make any or all Usenet newsgroups available to any of
the ISP's users, that ISP must specifically subscribe to and pay
for the downfeeds for each news group. Because any ISP in the
United States can install and run blocking software on its servers
and identify those subscribers or users who are using the ISP's
network, the ISP can simply trigger its screening software to
exclude access by minors to any or all of the Usenet groups or
hierarchies. For example, the University of Oklahoma installed
a second newsgroup server, offering one with restricted content
available to all users, and one with unrestricted content available
only to users identified as at least 18 years old.
Other incongruities in the district court's rationale further undercut its logic. For example, while insisting that compliance with the CDA is "either technologically impossible or economically prohibitive," ACLU, 929 F. Supp. at 854, or that as yet "no defense is technologically feasible," id. at 859, the lower court ignores the provisions of 47 U.S.C. §223 (a)(1)(B). That section proscribes the act of knowingly initiating the transmission of indecent (or obscene) images or communications "knowing that the recipient of the communication is under 18 years of age" (emphasis added). Obviously, it requires neither technological ingenuity nor economic resources for a pornographer to refrain from sending inappropriate material to someone known to be under 18 years of age. Moreover, the fact that extant obscenity and child pornography laws apply in cyberspace already, yet have not been challenged as technologically or economically unfeasible, further undermines the lower court's argument. As one commentator has argued:
Internet content and access providers are no more or less able
to prevent obscene communications or child pornography from reaching
minors (or adults) than they are able to restrict delivery to
minors of indecent communication. The arguments made by the plaintiffs
in the CDA case about the inability to monitor or control indecent
content apply with equal force to monitoring and controlling obscene
content; and yet they are not sufficient in the latter context,
since both federal and state governments may criminalize obscene
communications in any medium. Since content providers and service
providers must provide solutions to the problem of obscenity and
child pornography, since those solutions are likely to be equally
effective in regulating indecent or patently offensive expression
as well, the technological impossibility argument is not necessarily
a persuasive argument, either factually or legally.
In short, if Internet providers have the technical wherewithal
to shield material from children that is technically obscene,
then a fortiori the technology exists to protect minors
from non-obscene but sexually-explicit material. Put another way,
the "technical infeasibility" argument proves too much:
if valid, it would prove that Internet providers are incapable
of adhering to laws designed to prohibit obscene materials
from being distributed to minors, when that proposition is disputed
by no one.
As the research we have documented above shows, exposure to the
kinds of sexually-explicit speech centrally covered by the CDA
will gravely harm children. The district court erred in failing
to apprehend the magnitude of this danger in the unique context
of the Internet. This is the compelling factual predicate that
should undergird this Court's resolution of this case.
Because of the unparalleled nature of the Internet, the Court's
precedents offer helpful guidance but not a determinative rule.
It is clear the Government has a compelling interest in protecting
children from the dangers posed by exposure to sexually-explicit
materials. See, e.g., New York v. Ferber, 458 U.S. 747,
756-57 (1982). The voluminous research we have cited demonstrates
beyond cavil that the threat of this harm to children is genuine
and not exagerated. See United States v. National Treasury
Employees Union, 115 S.Ct. 1003, 1017 (1995). Moreover, when
applying the First Amendment Free Speech Clause in a new communications
medium, the Court has left itself room to fashion rules that fit
both the constitutional demand for free speech and the nature
of the medium. See Turner Broadcasting Sys., Inc. v. FCC,
114 S.Ct. 2445, 2456 (1994). Such a context-sensitive reading
of the First Amendment in this case is in keeping with the Court's
recent interpretation of the Free Speech Clause in Denver Area
Educational Tele-Communications Consortium, Inc. v. FCC, 116
S.Ct. 2374 (1996):
[T]he First Amendment embodies an overarching commitment to protect
speech from Government regulation through close judicial scrutiny,
thereby enforcing the Constitution's constraints, but without
imposing judicial formulae so rigid that they become a straightjacket
that disables Government from responding to serious problems.
This Court, in different contexts, has consistently held that
the Government may directly regulate speech to address extraordinary
problems, where its regulations are appropriately tailored to
resolve those problems without imposing an unnecessarily great
restriction on speech.
Id. at 2385.
If ever Congress were confronted with the necessity to "address
[an] extraordinary problem[]," id., the regulation
of patently offensive materials to children over the Internet
is such a case. With the CDA, Congress responded to this concern
in the only appropriate way in light of the gravity of the danger
to children posed by the distribution of sexually-explicit material.
This prohibition affects only as much speech as it must to accomplish
its purposes, for no lesser approach is commensurate with the
unique nature of the danger to children that distribution of sexually-explicit
materials over the Internet poses.
The Court has sufficient flexibility under its prior cases to
properly vindicate both the profoundly compelling governmental
interest at stake in this case, and the requirements of the First
Amendment. When the Court applies the strict scrutiny test, it
should give the Government's interest in protecting children the
paramount weight it deserves. Under that approach the Court should
weigh the cost and inconvenience of preventing children from obtaining
access to patently offensive materials against the grievous harm
such access would cause, and hold that the safe harbors available
under the CDA are sufficiently flexible to prevent the statute
from becoming constitutionally vulnerable. With this context-sensitive
approach, the Court will have acknowledged the unique danger posed
by the distribution of such speech over the Internet by fashioning
a rule that affords children the protection they deserve.
The Court should reverse the district court judgment that the
CDA is unconstitutional and remove the injunction that now blocks
its enforcement.
Respectfully submitted,
D.A. Jepsen Ronald D. Maines
M. Kendall Brown (Counsel of Record)
ENOUGH IS ENOUGH R. Shawn Gunnarson
4103 Chain Bridge Road MAINES & LOEB, PLLC
Suite 420 2300 M Street, NW, Suite 900
Fairfax, VA 22030 Washington, DC 20037
Counsel for Amici Curiae
January 21, 1997
Enough is Enough (EIE), launched in November 1992, is a
non-partisan, non-profit, educational organization whose mission
is to restore a social environment in which citizens are free
to raise their children and conduct their lives without the intrusion
of illegal sexual material or sexual predators. To achieve this
vision, EIE educates the public about the existence, availability,
and dangers of pornography; enlists public support to make pornographic
material unavailable to children; and encourages community efforts
to treat pornography's victims. EIE's principal operational goal
in 1997 is making the Internet safe for children.
Enough is Enough has been recognized as the leading national anti-pornography
organization addressing the issue of computer pornography and
child safety on the Internet. Active in drafting and supporting
the Communications Decency Act, EIE has fielded over 1,000 media
interviews since June 1995. EIE has testified on numerous occasions
before House and Senate Committees on a variety of anti-pornography
and child protection measures. EIE has also been active in assisting
state and local officials to strengthen city ordinances governing
sexually-oriented businesses, providing referrals for victim's
assistance, and co-sponsoring conferences for pastoral staff and
lay leaders, therapists, psychologists and couples on "Understanding
Sexual Trauma." Individuals involved with EIE come from varied
backgrounds, professions, religions, non-profit organizations
and political affiliations.
Childhelp USA, headquartered in Scottsdale, Arizona, has
come to the aid of children in distress since 1959. Childhelp
is committed to fighting child abuse and neglect with research,
treatment, and prevention programs. Childhelp operated the National
Child Abuse Hotline (1-800-4-A-CHILD and 1-800-2-A-CHILD for the
hearing impaired with TDD equipment), the Nation's only 50-state,
24-hour, toll-free crisis intervention program. The Hotline is
staffed by trained counselors and has a data bank of over 63,000
service providers across the country. Childhelp also operates
two residential treatment facilities for the most severely physically
and sexually abused children ages 2 through 12. One is located
in southern California and one in central Virginia. Childhelp
also operates two sexual abuse advocacy centers, one in Knoxville,
Tennessee and one in Manhattan, New York. Other services include
therapeutic foster homes, Head Start programs, group programs
for teen and adult survivors of abuse, training programs for child
care workers and foster parents, and education and advocacy initiatives.
Citizens for Family Friendly Libraries (Georgia) (CFFL)
was established in 1994 by Jennifer Toombs and Judy Craft. Its
objectives are to return local tax-funded libraries to taxpayer
control and to protect children from pornography. Currently, CFFL
carries out its mission by countering the public libraries' ever-increasing
trend toward providing all material to all patrons, including
children, no matter how sexually explicit. Because many public
libraries are now providing Internet service, the Internet is
of particular concern to CFFL.
Computer Power Corporation (CPC) is an Electrical and Electronic
Service Company that specializes in Power Quality, Ground Testing,
Communications and Technical Systems Management, and operates
a state- accredited educational program. CPC supports the CDA
and urges that parents, administrators, teachers, the legal community,
and the technology industry work together to responsibly manage
the Internet for the protection of America's children from pornographers
and pedophiles.
D/TEX Investigative Consulting (D/TEX) is dedicated to providing the finest investigative consulting services to decision-makers in the business, financial, and legal communities. D/TEX specializes in many kinds of investigation services, from locating individuals for legal services to commercial and fraud investigations. D/TEX also offers Due Diligence Services and various Consulting Services. In addition, D/TEX tracks criminal activity on the Internet, including illegal use of the Internet by pedophiles.
Family Friendly Libraries (FFL) is a national grassroots
network of concerned citizens, librarians and library trustees
that believe: (1) in more common sense access policies to protect
children from exposure to age-inappropriate materials without
parental consent, and (2) in a return to policies placing libraries
under maximum local control with more acknowledgment of taxpayer
authority and community standards. FFL is non-sectarian, non-profit
and educational. Its overall purpose is to unite communities through
appeal to society's long-standing responsibility to protect children
from harmful or age-inappropriate material, and to adopt parental
rights policies that empower parents while advancing democracy
by encouraging citizen involvement in the local taxpayer-funded
public library decision process. Located in Springfield, Virginia,
FFL offers information, advice and encouragement to callers concerned
about local public school and library policy. FFL offers solutions
that include changes in local or state statutes involving library
policies, harmful to minors laws, and parental rights. While FFL
does not support censorship or encourage removal of collection
material, it does call upon library professionals to act
responsibly to uphold community standards and protect the community's
children.
Focus on the Family is a Christian, non-profit organization
committed to strengthening the emotional, psychological and spiritual
health of children and their families in the United States and
throughout the world. Focus on the Family's President, Dr. James
C. Dobson, a renowned child psychologist, served on the Attorney
General's Commission on Pornography in 1986. Focus on the Family
has produced two major videos, "A Winnable War" and
"Fatal Addiction." It
has also assisted in one book, Pornography: A Human Tragedy
which directly discusses the harms of pornography to children,
men, women and families in America. The videos and book have been
seen and read by thousands of concerned citizens nationwide. Focus
on the Family daily radio broadcasts dealing with family concerns
and interests are heard by more than one million people daily
over 1,500 stations. Its monthly magazine has a circulation of
2.1 million. Focus on the Family regularly receives letters and
telephone calls from and counsels with families who have children
devastated by pornography, molestation and abuse. Focus on the
Family works to preserve and protect the family, and thus has
particular knowledge about the impact of child pornography that
will be helpful to the Court in this case.
Help Us Regain the Children (H.U.R.T.), a national legal
research center and lobbying entity, has inspired state and federal
legislative investigations and hearings on sexual abuse and exploitation
of children fought in the family courts and child protective system.
Several of the legislative proposals crafted by H.U.R.T. have
been accepted into the Committee Views accompanying legislation
before the U.S. Senate Labor Committee. Child advocates, legal
experts, mental health professionals, and parents of sexually
abused children have been brought by our center to the attention
of state and federal legislatures for the purpose of building
a strong record, detailing the severity of the malfunctioning
of our courts and social agencies in their role to protect children
from predatory harm.
JuriNet, Inc. is a California-based Internet company providing
on-line legal information and services, within the Internet's
first legal cyber mall, in a safe and enjoyable environment for
legal professionals worldwide. JuriNet Inc.'s purpose is to centralize
"electronic legal commerce" and provide the legal vertical
market worldwide with "one stop" shopping within the
Internet environment. The company intends to establish JuriNet,
Inc. as a global industry benchmark for self-regulation and responsibility,
ensuring that this legal cyber mall represents a safe and enjoyable
place for all legal professionals to work, learn and communicate.
Kidz Online is a non-profit educational organization dedicated
to introducing young people from all economic levels to the networking
technologies that will play a major role in their futures. We
are an on-line service just for kids and provide e-mail, monitored
chat rooms, a kids news section, and educational non-violent games,
in addition to a menu of technical training
opportunities. All content on Kidz Online is screened for inappropriate
and adult material.
Laura Lederer, J.D., is a contributor and editor of Take
Back the Night: Women on Pornography and The Price We Pay;
the Case Against Racist Speech, Hate Propaganda, and Pornography.
Log-on Data Corporation is a research and development technology
firm located in Southern California. The company is committed
to protecting children from illegal pornographic materials on-line
and has developed a software filter product to assist caregivers
in protecting children.
Legal Pad Enterprises, Inc. is a California-based Internet company providing on-line legal information and services in a safe and enjoyable environment for consumers worldwide. Legal Pad Enterprises first debuted on America Online in 1995 and is now accessed only on the World Wide Web, providing consumers globally with legal information and news. Legal Pad caters to adults and children with age-appropriate content and issues. Legal Pad's children's web site, Legal Pad Jr., provides kids and teens quality "edutainment" in an electronic medium where they can safely express themselves interactively via message boards, chats, and newsletters produced by their peers. Legal Pad Jr. is designed to encourage positive attitudes toward, and active participation in, learning how law affects life today and in the future. Legal Pad's "Partnership with Schools" brings together kids, teens and teachers to facilitate and enhance school outreach programs and teach how to travel and communicate safely in cyberspace. Currently, the company employs a cyberspace form of "Neighborhood Watch" within its site through an alliance with Cyber Angels. Legal Pad's electronic field trips unite kids around the world and teach them about on-line safety and opportunities. Legal Pad intends to introduce the first 911 service on the Internet and establish itself as a global industry benchmark for self-regulation and responsibility, ensuring that the entire site provides a safe and enjoyable place to work, learn, communicate and entertain.
Mothers Against Sexual Abuse (MASA) is a national, non-profit
organization dedicated to protecting children against the tragedy
of sexual abuse by educating society about child sexual abuse,
providing referrals for victims, and initiating new legislation.
MASA is also actively involved with establishing a comprehensive,
nationwide network of organizations, professionals, and ordinary
people concerned about the Nation's children. In addition, MASA
has developed a court advocacy program that assists victims and
aids judicial reform.
National Association of Evangelicals is a voluntary fellowship
of evangelical denominations, churches, schools, organizations
and individuals. NAE provides an evangelical identification for
42,500 churches from more than 80 denominations and has a service
constituency of approximately 27 million through its commissions,
affiliates and subsidiary. Its purpose is to provide a means of
cooperation and evangelical witness, and one of its primary concerns
is the protection of families from the moral pollution that endangers
them.
National Coalition for the Protection of Children and Families (NCPCF) was founded in 1983. It assists concerned citizens and community leaders in efforts to significantly reduce sexual exploitation and violence by (a) increasing public awareness of the harm and availability of exploitative and abusive pornography, particularly in the lives of children; (b) supporting the enactment and enforcement, within the parameters of the Constitution, of limitations on pornography; and (c) offering assistance to people whose lives pornography has harmed. NCPCF programs are carried out nationally and include resource development and distribution (including a wide range of research reports documenting the harms of pornography); victim assistance (including seminars, training counselors, therapists and church pastors to directly help addicts, spouses of addicts and victims and survivors of sex abuse); and assistance and training to law enforcement. NCPCF's work in the field over the last fourteen years provides a depth of experience to contribute to the Court's resolution of this case.
National Council of Catholic Women (NCCW) is a nationwide
federation of 8,000 Catholic women's organizations representing
millions of Catholic women. NCCW acts through its affiliated organizations
to support, empower and educate all Catholic women in spirituality,
leadership and service. NCCW programs respond with Gospel values
to the needs of the Church and society in the modern world.
National Political Congress of Black Women, Inc. (NPCBW)
is a non-partisan, independent political organization which encourages
all African American women to participate in the political and
economic process as voters, candidates, policy makers, fund-raisers
and highly visible role models. NPCBW serves as a catalyst for
the election and appointment of African American women to all
levels of government and the political process. In addition, NPCBW
encourages mentoring and political involvement, offers training
in the political process, and advocates public policy positions
beneficial to the needs and aspirations of African Americans,
at all levels of government.
Omaha for Decency (OFD) is a non-profit organization that
educates citizens primarily in the Omaha metropolitan area about
the principle that obscenity is not protected speech under the
First Amendment, and about the harmful effects of pornography.
OFD works with local and state law enforcement agents in cases
regarding the illegal distribution of pornography. It is also
active in urging citizens to utilize their right to fight pornography
through working to improve laws, by asking law officials to enforce
laws, and by communicating concerns about the harms of pornography
to merchants, the media, and others.
One Voice/The American Coalition for Abuse Awareness is
dedicated to improving the quality of life for survivors of sexual
abuse and incest, as well as physical and emotional abuse. Located
in Washington, D.C., its purpose is to build a comprehensive network
of attorneys across the country who are committed to furthering
the rights of survivors under the law; to develop educational
outreach programs; to facilitate a national grassroots movement
to support the projects in progress on the issues of sexual abuse
and incest; and to advocate changes in the statutes of limitations
for states. One Voice believes that the connection between childhood
abuse and child pornography has been established beyond any doubt
and supports the enforcement of laws aimed at preventing the production
and distribution of child pornography. The American Coalition
for Abuse Awareness (ACAA), a public policy project of One Voice,
is a coalition of individuals and groups committed to resolving
the issue of child sexual abuse. In addition, the ACAA is committed
to the development of public and media awareness of the issue
of the sexual abuse of children; the development of educational
outreach programs for members of the judicial and legislative
branches of government; and establishment of a national body to
make policy recommendations on issues regarding childhood sexual
abuse, the protection of children, and adult survivors of abuse.
Oklahomans for Children and Families (OCAF) is a non-profit organization founded by George Harper in 1984. It was originally called Oklahomans Against Pornography. With Bob Anderson currently serving as president, OCAF is an alliance of concerned citizens, including civic, business, religious, health care and educational organizations. Its mission is to reduce sexual violence and the victimization of women and children in Oklahoma County and throughout the State of Oklahoma by eliminating child pornography and other illegal pornography and regulating sexually- oriented businesses and sexual materials harmful to minors. OCAF seeks to accomplish this by educating Oklahomans regarding the danger and harm of pornography, by mobilizing concerned citizens to action, by working cooperatively with justice officials to enforce obscenity/child protection laws, and by giving assistance to victims.
Religious Alliance Against Pornography (RAAP). Founded
in 1986, RAAP is an inter-faith alliance of religious leaders.
Members include senior representatives of the Protestant, Roman
Catholic, Eastern Orthodox, Jewish, and Latter-day Saint communities
committed to addressing the problems of illegal hard-core and
child pornography. RAAP is united in its strong commitment to
constitutional freedoms guaranteed by the First Amendment, just
as it is united by its fundamental convictions about human dignity.
RAAP opposes government censorship and promotes enforcement of
all laws governing illegal pornography. Currently led by Dr. Jerry
R. Kirk, and formerly co-led by the late Joseph Cardinal Bernardin,
RAAP has worked to encourage enforcement of laws on exploitation,
child pornography and illegal obscenity. The Alliance has labored
to encourage society to take seriously its responsibility to shield
children from pornography and the worst impulses of adults. Most
recently, the Alliance held a national summit in Washington, D.C.,
on the problem of child sexual exploitation. RAAP has made extensive
efforts in combating the U.S. role in international child sex
tourism. RAAP's efforts have focused on a central principle: encouraging
a deeper moral discussion and educating citizens with a heightened
awareness of their communal responsibilities as an essential partner
to their private rights.
The Salvation Army is concerned that the dignity of mankind
should be preserved and deplores the increasing pornography and
blasphemy infecting books, magazines and newspapers, and featured
in the theater, at the movies, in radio and television, and on
the Internet. The Salvation Army maintains its stand against evils
that threaten the quality of personal and national character and
seeks to arouse public conscience against such evils. The Salvation
Army wholeheartedly supports the education of people on matters
relating to the sanctity of proper sexual relationships based
on the teachings of the New Testament.
Victims' Assistance Legal Organization, Inc. (VALOR) was
founded in 1981 as a national non-profit organization dedicated
to promoting the rights of victims of crime in the civil and criminal
justice systems. With support from foundations, individuals and
government grants, VALOR's recent activities include: producing
its 1995 and 1996 National Crime Victims Rights Week Resources
Guides; developing a Model Restitution Reform Project; and
providing leadership on reforms in the areas of child abuse, juvenile
justices, sentencing, and parole.
Weitzman, Lenore, Ph.D., is a sociologist who studies law
and the social effects of legal rules. She is the author of the
award-winning book, The Divorce Revolution: The Unexpected
Social and Economic Consequences for Women and Children in America,
three other books and numerous articles. She is currently Professor
of Sociology and Law.
WheelGroup Corporation is a leading-edge network security company specializing in intrusion detection and the prevention of unauthorized or illegal activity on computer networks. Although a supporter of First Amendment rights, WheelGroup is adamantly opposed to illegal communications such as child pornography. The company has provided technical advice to Enough is Enough on the matter of the prevention of such activity and is a strong advocate that technologies (such as those it has produced) exist in the commercial market for effectively preventing illegal communications activities.