---------- Forwarded message ---------- Date: Mon, 29 Oct 2001 22:06:48 -0500 From: Bruce A. Taylor <BruceTaylorat_private> To: Declan McCullagh <declanat_private> 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 BruceTaylorat_private 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. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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