By Jerry Morgan, Esq.
Where does the Constitution provide a right for adults to have their porn appetite glutted with no undo “burden”?
Yet again, a federal court has decided that the need of commercial pornography establishments to display their wares on the Internet outweighs a state’s compelling interest to protect children from exposure to sexually explicit material. In PSINET v. Chapman, No. 01-2352, 2004 U.S. App. LEXIS 5599 (4th Cir. March 25, 2004), the U.S. Court of Appeals for the Fourth Circuit upheld a lower district court ruling that a Virginia statute, which criminalizes the dissemination of “material harmful to minors” over the Internet, is unconstitutional.
Since 1970, Virginia has prohibited the knowing display in retail stores open to minors of commercial materials that are harmful to juveniles under Va. Code Ann. § 18.2-391. In 1985, Virginia amended the statute, making it also unlawful “to knowingly display” these materials “in a manner whereby juveniles may examine and peruse” them. The 1970 statute, and its 1985 amendment, had both been upheld as constitutional, based on the Supreme Court of Virginia’s narrow construction of the law. Courts have defined “material harmful to minors” by combining the definition of adult obscenity derived from Miller v. California, 413 U.S. 15 (1973) with a pre-Miller definition of “material harmful to minors” in Ginsberg v. New York, 390 U.S. 629 (1968).
Virginia’s trouble began in 1999, however, when it once again amended the statute to make clear its application to the Internet. Before the 1999 amendment, the statute included within its reach “any picture, photography, drawing, sculpture, motion picture film, or similar visual representation or image” and “any book, pamphlet, magazine, printed matter however reproduced, or sound recording,” defined as “harmful to minors,” Va. Code Ann. § 18.2-391(a) (1985). Any rational reading of this language leads to the conclusion that Internet material could certainly be included.
Yet, the 4th Circuit held that the pre-1999 version indeed did not include the Internet. In fact, the court stated that the entire purpose of the 1999 amendment was to expand the statute in order to include cyberspace. As the dissent pointed out, however, Virginia’s purpose could just as likely have been to clarify its applicability to the Web.
The real problem for the court was that the statute placed restrictions on those marketing Internet pornography. There is no question that the statute imposed limitations on the speech of these companies. Further, the limitations were specifically related to the content of the speech (the restriction was placed only on pornographic speech, not speech in general). Consequently, the statute must be measured against a standard the Supreme Court has called “strict scrutiny,” which means the statute must be narrowly tailored to accomplish a compelling government interest. In other words, because freedom of speech is so important in a free society, any governmental attempt to curtail speech based on its content must pass the highest threshold of review.
In Virginia’s case, all of the parties admitted that the state of Virginia indeed had a compelling interest — the protection of juveniles from online pornography. The question then became whether the statute was “narrowly tailored” to actually provide such protection, and whether the state could have chosen less restrictive measures to provide the same protection.
The court held that the 1999 amendment was too restrictive (and thus not narrowly tailored), because requiring online pornographic businesses to take “reasonable steps” to ensure that juveniles did not access their materials would mean that adults also would not have access to them. But, as the dissenting opinion makes clear, pornographic Internet businesses are already doing this. Most of them use “teasers,” or pornographic images that appear as soon as a user types in the Web address of the business. These teaser images are intended to convince the user to become a “member” by utilizing a credit card or other methods of payment in order to have access to the entire site. This is in fact how these businesses make a profit, and why so many of them are available. The requirement of a credit card number is a reasonable step to ensure that only adults gain access to the materials. It may not be perfect, but it is a step in the right direction.
Unfortunately, the court did not agree. In fact, the court seemed troubled by the idea of using a credit card system as a barrier to juveniles, because it may also serve to keep adults away. After all, according to the court, “many adults may be unwilling to provide their credit card number online, and would therefore not visit the site.” (Would that really be a problem? Numerous businesses operating online require a credit card, access code or personal identification number in order to access their Web site.) The court failed to indicate how this “dilemma” is any different than an adult who may be unwilling to provide personal information to an actual video store in order to rent pornographic videos. Yet the restriction was held constitutional when it pertained to brick and mortar establishments.
There is an obvious inconsistency here, and in many other cases dealing with Internet pornography and its availability to minors. On the one hand, the pornographic businesses argue that they have no effective method of screening the users in order to keep juveniles away, so the courts should not restrict them at all. Yet, at the same time they actively engage in very successful screening! These businesses have one goal — making money. How do they do so? By convincing public users to provide their credit card numbers and become members. If there were really no way to screen users, none of these businesses would make a profit. After all, why would a person pay for something he could get for free? The only burden placed on the businesses by Virginia’s statute would be to remove the “teasers,” meaning that all persons having access to the sites would have to provide credit card numbers or other information in order to see the materials.
This hits the pornography sellers in the pocketbook. They know that these teasers are critical to their bottom line. If a statute requires them to keep the teasers away from juveniles, they will have to require the credit card numbers from the very start. They assume that many adults would not be willing to do so because they simply don’t want to pay. And the business would lose the impact of the teaser, which is a hook to entice the next generation of porn addicts.
(This article courtesy of Concerned Women for America.)
