Technology and Pornography

Brigham Young University Law Review, 2007 by Nunziato, Dawn C

Yet, because the case involved a facial challenge to COPAbefore it had been applied to restrict any speech whatsoever-the concurring Justices ultimately concluded that those challenging the statute at this stage had failed to meet their burden of identifying what, if any, speech would be unconstitutionally burdened by the statute.90 Although they observed that the national variation in community standards constituted a particular burden on Internet speech, the concurring Justices found the Third Circuit's conclusion to be premature absent a comprehensive and careful analysis of the burdened speech.91

On remand, the lower courts were charged with expanding the focus of their inquiry into the constitutionality of COPA beyond the effect of the national variation in community standards on sexually-themed Internet expression.92

C. The Children's Internet Protection Act of 2000

In the meantime, faced with the hostile judicial reception to the zoning schemes embodied in the CDA and COPA, Congress undertook a software filtering-based approach in CIPA. Enacted in 2000, CIPA operates by conditioning public schools' and libraries' eligibility to receive certain federal funds upon their implementation of filtering software to block access to harmful sexual expression on the Internet.93 Within the regulatory scheme contemplated by CIPA, each community, acting through its community-based institutions, theoretically enjoys a measure of autonomy to determine for its own community the contours of obscene and obscene-for-minors expression. This determination is to be effectuated through the use of filtering software configured to block expression that falls within the definitions of speech that is harmful to minors set forth by the community-based institution itself (i.e., the public school or library). As such, CIPA's regulatory scheme enables communities to impose their "contemporary community standards" with respect to obscene content harmful to minors, in a way that potentially overcomes the constitutional obstacles94 that the courts identified in COPA.

Under the CIPA scheme, each public elementary and secondary school and each public library theoretically enjoys the autonomy to determine what type of Internet speech is obscene and what type of Internet speech is obscene for minors. As a theoretical matter, under CIPA, each community, acting through its public schools and libraries, is permitted to specify the parameters of protected and unprotected speech, for minors and for adults, and to implement these parameters by configuring filtering software-to be used by members of its community only within die community's public libraries and schools-to effectuate these restrictions. Thus, CIPA's scheme quite nicely resolves the seemingly intractable problems to implementing a Miller-based constitutional regulation of minors' access to obscene speech by allowing each community to determine the contours of protected and unprotected speech for its community, thereby protecting community autonomy and substantially limiting community-to-community spillover of such determinations. As discussed below, however, despite the fact that CIPA's basic regulatory scheme embodies great promise for achieving a constitutional regulation of minors' access to harmful speech, the details of this scheme have proven problematic.