Constitutional Law
Oct. 17, 2001
Blue Moon
The U.S. Supreme Court's new term began on Oct. 1, and the justices already have taken several cases that concern the ability of the government to regulate sexual speech. The docket for the term has several cases that are likely to be major rulings on important social issues, such as affirmative action, vouchers that can be used for parochial schools and the execution of the mentally retarded.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
The U.S. Supreme Court's new term began on Oct. 1, and the justices already have taken several cases that concern the ability of the government to regulate sexual speech. The docket for the term has several cases that are likely to be major rulings on important social issues, such as affirmative action, vouchers that can be used for parochial schools and the execution of the mentally retarded.
But the decisions that receive the most attention may well be the ones that deal with sex and the Constitution. The Supreme Court's rulings will be important in clarifying the scope of federal and local power over sexually oriented expression, especially over the Internet.
The three pending cases raise different legal questions, including what the government may do to protect children from exposure to nonobscene sexual material on the Internet; whether the government may prohibit computer-generated child pornography; and what types of regulations local governments may impose on adult-entertainment establishments.
But underlying all three cases is the basic tension between the right of people to read and watch what they choose and the government's power to control sexual speech to prevent perceived harms. Together, the three cases are likely to go a long way toward clarifying what the government may do in regulating sexual expression. Thus, they are likely to be among the most important decisions of the new term.
• Indecent material over the Internet. In Ashcroft v. American Civil Liberties Union, 217 F.3d 162 (3rd Cir. 2000), cert. granted, 69 U.S.L.W. 3739 (May 22, 2001), the court will consider the constitutionality of the Child Online Protection Act, which aims to protect children from exposure to sexual material on the Internet.
In 1996, Congress enacted the Communication Decency Act, which made it a federal crime for a person knowingly to transmit indecent materials in a manner accessible to a minor. In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Supreme Court declared the law unconstitutional as violating the First Amendment. The court, in a 7-2 decision, stressed that the government cannot limit speech for adults to that which is acceptable for children. Justice John Paul Stevens' opinion for the majority found that the criminal prohibition of "indecent" material was unduly vague and would chill a large amount of constitutionally protected speech.
Congress then passed the Child Online Protection Act, which requires that operators of commercial Web sites restrict access by children to material that the average person, "applying contemporary community standards," would find is designed to pander to the minors' prurient interest.
This law is different from the Communications Decency Act in that it applies only to commercial Web sites and defines the objectionable material in terms of what would be offensive under community standards. The law requires that such sites take actions to exclude children, such as requiring credit cards or age-verification services. Thus, perhaps most importantly, the act is different from its predecessor because it does not prohibit material so long as the commercial Web site takes the necessary steps to exclude children.
Nonetheless, both the U.S. District Court and the 3rd U.S. Circuit Court of Appeals declared the law unconstitutional based on how it would limit speech on the Internet to that which would palatable in the most restrictive state. The 3rd Circuit explained that the use of "contemporary community standards" greatly restricts speech when applied to a national medium like the Internet, which cannot be limited to users in particular geographic areas. The case undoubtedly will be important in clarifying how the government may regulate the Internet and what actions may be taken to protect children.
The decision also may have greater significance in clarifying the test for obscenity. Under Miller v. California, 413 U.S. 15 (1973), the court defined obscenity, in part, as material that by contemporary community standards appeals to the prurient interest. The underlying issue in Ashcroft v. American Civil Liberties Union is whether such a community focus makes sense when dealing with an inherently national medium like the Internet.
• Regulating child pornography. A second case involving computers and sexual speech is Ashcroft v. Free Speech Coalition, 198 F.3d 1083 (9th Cir. 1999), cert. granted, 121 S.Ct. 876 (2001). The Child Pornography Prevention Act of 1996 prohibits child pornography whether it is based on actual pictures of children or computer-generated images. 18 U.S.C. 2251-2253. Specifically, the law prohibits "visual depiction" that "appears to be" or "conveys the impression" of a minor engaging in sexually explicit conduct.
The 9th Circuit declared the law unconstitutional because it concluded that there was not a compelling reason for preventing computer-generated images of fictitious children engaged in imaginary, yet explicit, sexual conduct. The court also found that the law was impermissibly vague in terms of what was prohibited.
In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court held that the government may prohibit child pornography because of its compelling interest in preventing children from being used in its production. In Ashcroft v. Free Speech Coalition, the court will need to decide whether the government may regulate child pornography only to protect children from being used in its creation or more generally to rid the marketplace of such material.
Again, the decision is likely to have implications beyond the specifics of the law the court is evaluating. Underlying the case is the question of what justifies regulating sexual material: To what extent may the government say that some images are so objectionable that society may outlaw them?
• Regulating adult businesses. Finally, in City of Los Angeles v. Alameda Books Inc., 222 F.3d 719 (9th Cir. 2000), cert. granted, 121 S.Ct. 1223 (2001), the court will consider what a local government must prove to justify regulating adult-entertainment establishments based on their harmful secondary effects. Ordinances in Los Angeles prohibit, in the same building, the operation of adult businesses that both sell adult products and contain facilities for viewing adult movies or videos.
The city justified the ordinances based on the harmful secondary effects of such businesses in communities where they were located. This case involves Arcade Books and Highland Books, which operate a combined adult bookstore and adult movie arcade.
The 9th Circuit declared this unconstitutional based on inadequate evidence of such harms. The Supreme Court will need to decide the nature of the proof required to justify this type of regulation. In City of Renton v. Playtime Theaters, 475 U.S. 41 (1986), the Supreme Court held that the government could use zoning laws to restrict adult businesses to one corner of a city to prevent the undesirable secondary effects associated with them.
More recently, in City of Erie v. Pap's A.M., 120 S.Ct. 1382 (2000), the court ruled that local governments may prohibit nude dancing. The court's plurality, in an opinion by Justice Sandra Day O'Connor, emphasized that this may be based on the city government's view that such establishments cause undesirable secondary effects, such as increased crime.
In Alameda Books, the court will need to revisit this issue and decide the evidence needed to justify regulations based on perceived harmful secondary effects. Here, too, the case is likely to affect much more than just the Los Angeles ordinance; it will empower or restrict local governments all over the country in regulating adult businesses.
Few areas of First Amendment law are more interesting or more controversial than the government's power to regulate sexual speech. Thus, it is quite notable that already there are three cases on the Supreme Court's docket raising this issue. These certainly are likely to be among the most significant rulings of the term.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com