FC: Supreme Court hears arguments Tues. morning in morphed porn case

[Declan McCullagh <declan@well.com>]

---------- Forwarded message ----------
Date: Mon, 29 Oct 2001 22:06:48 -0500
From: Bruce A. Taylor <BruceTaylor@NationalLawCenter.org>
To: Declan McCullagh <declan@well.com>
Subject: FW: Supreme Court hears COPA case Nov. 28 and CPPA case Oct. 30



Bruce A. Taylor
President & Chief Counsel
National Law Center for Children and Families (NLC)
3819 Plaza Drive, Fairfax, VA 22030-2512
(703) 691-4626, Fax: 703-691-4669
cell: (703) 626-5341
BruceTaylor@NationalLawCenter.org
www.NationalLawCenter.org

The Court will hear oral arguments in the two pending pornography cases on
October 30th (computerized child porn case) and November 28th (the COPA
case).

October 30, Tuesday, at 10:00 AM, Ashcroft v. Free Speech Coalition, No.
00-795 This is the challenge to the CPPA (Child Pornography Prevention Act
of 1996) on computerized child porn.  Under new section 18 U.S.C. 2252A, it
is an offense to knowingly produce, distribute, or possess "child
pornography", which, as defined in section 2256, includes an images that "is
or appears to be" a minor engaging in sexually explicit conduct.  We argue
in our amicus brief for NLC, et al. that the image must be artificial or
counterfeit child porn that is so realistic that it is indistinguishable
from a photo and appears to really be a real picture of a real child (even
if altered or completely generated by computer).  If the view can perceive
that it is or appears to be a drawing, painting, computer creation, adult
body-double playing a minor's role in a movie such as Lolita, etc., then the
statute does not apply.  If you use an adult model and you disclose it, the
statute doesn't apply.  The Act validly applies to images that look like
real child porn and it is, therefore, narrowly tailored within
constitutional bounds to prevent the knowing traffic in images that the
creator, distributor, or collector know or believe to be real child porn
images.  (Ironically, the challenge was brought by the hard-core porn
industry's trade lobby, the Free Speech Coalition.  It's ironic to me,
because they, like Hollywood, can't or shouldn't knowingly use minors to
make porn or sex scenes and therefore won't violate this Act and have
nothing to fear from it.  If they did use a minor to do his or her own nude
scenes or sex acts in a film, then they'd violate the old, existing child
porn statutes, 2251 and 2252.

November 28, Wednesday.  Ashcroft v. ACLU, No. 00-1293.
This is the challenge by ACLU and other non-pornographic Websites to the
COPA (Child Online Protection Act of 1998), which, under new section 47
U.S.C. 231, forbids commercial sites on the World Wide Web from knowingly
making pornography that is legally "harmful to minors" ("obscene for
minors") available to minors, without good faith efforts to exclude minors
by taking credit cards or a credit card number, adult PIN number, digital
ID, etc. The federal trial court in Philadelphia issued a preliminary
injunction and the 3rd Circuit Court of Appeals affirmed the issuance of the
pre-trial restraining order on the grounds that geographic community
standards would be unconstitutional to impose in cyberspace, held that
community standards for what is harmful or obscene for minors have been and
must be geographic based, and then held that COPA was probably
unconstitutional for having a geographic standard.  We argued in the amicus
brief for Members of Congress that COPA was passed and intended to adopt a
non-geographic standard, an "age" standard of what the average American
adult would find prurient and offensive for minors, and that Congress
provided a legislative intent in its Committee Report that avoided the very
problem the Third Circuit refused to correct (which it could by
authoritatively construing COPA as intended by Congress to use an "age"
standard instead of a "district" standard) and that the Supreme Court should
reverse the Third Circuit, render the authoritative construction of the
federal statute that was properly and explicitly adopted by Congress, and
uphold the potential application of the statute within constitutionally
valid bounds and reverse the grounds for the preliminary injunction and
remand for the lower federal courts to properly interpret and apply this new
federal statute.

Now for my personal comment and constructive criticism:
The Solicitor General's office did a good job with the Government's briefs
in these cases and we hope and trust that General Olson will present a good
argument or direct that a good argument on statutory construction be
submitted to the Court.  I have a lot of respect for him and the lawyers who
worked on these briefs, so I'll expect a good fight and a tight argument.
We don't expect to see this SG embarrass the office and insult Congress and
the Court, like the SG did in the CDA argument in 1997, where the SG
admitted that the CDA was vague and could be overbroad, but asked the Court
to uphold it for the children, knowing that his admission that it was
unconstitutional but please-let-us-have-it-anyway would force the Court to
strike it.  The SG, obviously, should have argued good-old Common Law,
Blackstonian, U.S. Supreme Court historically applied and mandated
principles of statutory interpretation and narrowing construction.
If the Government had interpreted the CDA narrowly within constitutionally
valid parameters, as Congress explicitly explained in its Conference Report
on the CDA (and argued in our amicus Brief for Members of Congress), and
submitted a narrowing construction to the District Court and Supreme Court
that would have made it constitutional, then the courts could have saved it
and the whole CDA/COPA/CIPA battle would have been entirely different.  (It
was worst than the X-Citement Video case, where the SG at least admitted
that the child porn statute needed and included some element of scienter or
guilty knowledge, but wouldn't and didn't argue or submit an authoritative
construction to provide a knowledge element for the Court.  Good thing every
federal circuit Court of Appeals except the 9th Cir. recognized a knowledge
element in section 2252, despite no help from the SG, so the Court had its
own and other court precedent to guide it in the absence of guidance from
the parties.)
In the CDA case, the ACLU/ALA and DOJ interpreted the Act to be so vague
that they didn't know who had to comply and so overbroad that it reached
protected speech.  Conversely, Congress intended and we argued that the CDA
must be interpreted and construed so narrowly that it didn't apply to
protected speech.
Congress stated its intent that the CDA would apply only to pornography that
is within the established tests for separating unprotected pornographic
speech that is like materials legally "obscene for minors" (Congress tried
to create a new form of "online indecency", which was unlike "broadcast
indecency", and the new "online indecency" for the CDA would not apply to
materials having serious literary, artistic, political, or scientific value,
for either adults or minors, and applied only to pornographic material that
was lacking in protection for minors, like pornography that is "harmful to
minors").  As so construed, the CDA need not have been found
unconstitutionally vague or overbroad and the Act could then have been
applied, as intended, within such narrow scope that it would not apply to
protected speech.
In my opinion, what the Solicitor General argued to the Court in Reno v.
ACLU in 1997 was either misfeasance or malfeasance.  They were smart people,
so it is hard to excuse it as gross ignorance of the law.  It looked like
they intentionally "threw" the case.  It sounded like they were arguing to
reporters in the back of the Courtroom, rather than to the Justices in front
of them.  It was as if DOJ said "we need this bad law for the kiddies,
please let us have it and we promise not to apply it to the good plaintiffs
to whom it could, but shouldn't, apply".  They must have known, as all the
rest of us did, that the Court would have to strike it down if both parties
said it was overbroad.  They would also be expected to have known that such
a non-legal speech, rather than a legal argument on the law of statutory
construction, would then give the Govt. the ability to claim and have the
press report that the AG tried to stick up for kids, but Congress passed a
bad law and they couldn't do anything about it.  (By the way, that DOJ never
enforced any of the other existing laws that apply to Internet, Usenet, or
Web obscenity, either to protect children or just to punish those who
violate existing obscenity laws, so it's not like we expected them to try to
save and enforce the CDA, for the kids or anyone else.)
In any event, that CDA argument was the worst show of advocacy for the
United States that I've ever witnessed in three decades of First Amendment
litigation.  It was embarrassing to be a lawyer in that august hall and
watch both sides argue against the law.  The record was full of so such
misleading and inaccurate information, that it is no wonder the Court fell
for it, but that was the record and that was the argument.  The Court, in
their defense, is entitled to expect that there will be opposing sides to
contest and clarify the issues; not two sides ganging up on an Act of
Congress and arguing the exact opposite of what it intended.
Anyway, I'm looking forward to these arguments on CPPA and COPA.  I think
the Court will uphold CPPA, as narrowly interpreted by Congress and narrowly
construed by other federal courts that have upheld it.  I'm hopeful on the
COPA case, since I would expect that the Court would construe COPA to employ
a non-geographic standard, as Congress intended so as to avoid the problem
identified by the lower courts, and thus send the case back down for trial
on a proper legal standard.  The Government should win both of these, so
we'll wish them great insight and good luck on October 30 and November 28.







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