Ashcroft v. American Civil Liberties Union - Oral Argument
Transcript:
Argument of Gen Theodore B. Olson
Chief Justice Rehnquist: We'll hear argument next this morning in No. 03-218, John D. Ashcroft v. The American Civil Liberties Union.
General Olson.
Mr. Olson: Mr. Chief Justice, and may it please the Court:
The Child Online Protection Act addresses a problem that all three branches of our national Government have repeatedly and consistently described as compelling, the pervasive and essentially unavoidable commercial Internet pornography that inflicts substantial physical and psychological damage on our children.
COPA was carefully drafted by Congress after hearings, debate, reports, and findings according to explicit guidance from this Court as to how constitutionally to address and resolve and deal with this... this menace.
The compelling need is overwhelming and is growing.
Internet pornography is widely accessible, as easily available to children as a use of a television remote.
This Court has noted, as Congress has, that immense psychological and immeasurable physiological harm is done.
The...
Justice O'Connor: Mr. Olson, part of the problem is that the pornography laws that would apply to adult viewers don't seem to be enforced very well, the obscenity laws.
There are very few prosecutions, and yet there's all kinds of stuff out there.
What's... what's going on?
Mr. Olson: Well...
Justice O'Connor: I mean, if they were enforced, a lot of the problem would be assisted.
Mr. Olson: Well, it... in the first place, Justice O'Connor, while there may have been some lapse in... diminution in obscenity prosecutions a number of years ago, the information that I'm given, and it's not in the record, is that 21 indictments have been brought in the last 2 years, 17 have involved Internet.
But the problem with respect to the children is the material that is so widely available on the Internet that doesn't reach the definition of... that is not as bad as obscenity.
It is a wide amount of information.
The legislative history described 28,000 pornographic sites in a... this is also outside the record, but if an individual goes to their Internet and... and uses an Internet search engine and... and types in the word, free porn, I did this this weekend, the... your... your computer will say that there are 6,230,000 sites available.
Now that's available now...
Chief Justice Rehnquist: Well, how many sites are there available altogether on the Internet?
Mr. Olson: Well, there are... there are a great deal more than that, Mr. Chief Justice, and I don't know the exact number, but I believe the record, with respect to the Child Online, COPA, uses... describes those numbers, but it is increasing enormously every single day, but the...
Justice Kennedy: Yes, even... even the 28,000 was at the time this bill was enacted.
Mr. Olson: That's right.
Justice Kennedy: So I'm... so I assume...
Mr. Olson: And so the...
Justice Kennedy: it's much greater now.
Mr. Olson: And every evidence that's available to us, and I don't think this is disputed by respondents, is that the number of Internet sites is growing up exponentially.
Justice O'Connor: Those figures include the obscenity violations too, I assume?
You're... you're not just talking about sites that are affected by the Child Protection Act?
Mr. Olson: Well, I'm talking about sites that... that would be available to you...
Justice Souter: Other things too, right.
Mr. Olson: to you or me...
Justice Scalia: Right.
Mr. Olson: or to a 12-year-old...
Justice Kennedy: Right.
Mr. Olson: by typing in the word...
Justice O'Connor: Exactly.
Mr. Olson: free porn...
Justice Scalia: Exactly.
Mr. Olson: where there would be no screen...
Justice Stevens: Yeah.
Mr. Olson: preventing the child from getting to that information.
Justice O'Connor: Yeah, and my first inquiry was... was such a vast array of sites.
There are so few prosecutions.
Justice Scalia: It's just amazing.
Mr. Olson: Well, as I said, the number of prosecutions are increasing.
What... what the... what the, and United States Attorney manual asks United States Attorneys to focus on obscenity where there's evidence of organized crime...
Justice Scalia: Now, you said free porn, not free obscenity.
Mr. Olson: That's correct.
Justice Scalia: Presumably they still can't advertise free obscenity.
We... we've drawn a line.
Mr. Olson: That's correct, and I...
Justice Scalia: Then I don't really understand, but there's a line there somewhere between obscenity and pornography, right?
Mr. Olson: Well, there's a line there that this Court...
Justice Scalia: Pornography is okay?
Mr. Olson: Well, this... what we're talking about today is something that would be described as... and I'm using the term pornography as a shorthand version to describe what was described in the statute as harmful to children.
That's a... statute itself refers to obscenity and material which is harmful to children.
It then goes on to describe the category of material that is harmful to children using the language that was approved by this Court in the Miller case, as modified by the Ginsberg v. New York case with respect to material which is harmful to children, which is broader than the definition of obscenity.
The...
Justice Stevens: You're... you're not suggesting that the free porn that you call up would not include any obscene material?
Mr. Olson: I did... I didn't have time to go all the way through all those sites.
[Laughter]
And... and... and it's not a pleasant...
Justice Stevens: I'd imagine you found some that it was obscene.
Mr. Olson: And it's... I didn't.
I... the material that I saw and I think that the Court would see is that the people that are putting in... these are... this is material in front of, and the legislative history describes this, the material which is obscene is usually kept behind so-called blinders, which do... which is a very good point here, because the very mechanism that the statute requires is already in existence with respect to commercial pornography sites.
Justice Stevens, what the... what the... what the purveyors of this material do is put in front of the screen provocative material that we submit would meet the definition of harmful to children and make that available to everybody to entice people to go the next step to use their credit card or their age identification mechanism to go the next step.
Justice Ginsburg: General Olson, you said something that I... I would question.
You... you said it's just like the blinder racks, but it isn't, because I don't have to give my ID and I don't have to be concerned that someone will know that this person with this address and this credit card wants to look at this material.
You can... you can... the... the... the idea of the blinder rack is to protect the child, but at the same time, the one who wants to see it doesn't have to disclose his identity.
Mr. Olson: Well, you're disclosing your identity, Justice Ginsburg, because you're standing there in public examining those...
Justice Ginsburg: How many people are going to be in that adult store, bookstore with you, as opposed to giving your credit card number?
Mr. Olson: What you're... what you're... what you're disclosing your identity in person, I... we would, the Government would argue that that is more invasive, but that nonetheless that there's some... this is a counterpart to those blinder racks.
In many of the convenience stores or adult bookstores or stores that you may go into where those blinder racks are, there are cameras recording the... the... for protection of the shops, for other reasons, recording the presence of the person.
We submit that in the privacy of one's home, use... utilizing this information with the provision in the statute...
Justice Ginsburg: But the whole world can know about it if I've given my credit card number.
Mr. Olson: It... it is a... it is a crime under COPA for the persons providing that information pursuant to adult identification provisions, it's section, subsection d of COPA that makes it a crime to reveal that information.
So there is protection built into the statute that protects the person's anonymity with respect to using that material, which is not protected.
When a...
Justice Ginsburg: Then why is there such resistance to giving the ID and the credit card?
People resist giving it, their credit cards, and I think the two reports said that that was the case, the reports on COPA.
Mr. Olson: Well, some... some people may.
Congress made a... some people... there... the numbers are not quantified at all, but there is privacy protection.
Giving your identity is necessary going into a nightclub, going into an adult movie, or going into a bookstore and using this material.
Some people may say, I don't want to, that's a price I don't want to pay, but it's not quantified in...
Justice Ginsburg: You don't have to give your credit card to go into the nightclub or the movie.
Mr. Olson: Well, you probably... in some cases you don't, in some cases maybe you do.
I don't know if there's a charge...
Justice Scalia: There... there may be resistance made there not on the part of people to stand in front of blinder racks or to go into those portions of bookstores that are excluded, that exclude children because of the presence of pornography.
There may be people who won't go into that section because they don't want to be seen there or don't want to be seen standing in front of the blinder rack, although they'd be happy to look at pornography if it was mingled in with everything else.
Mr. Olson: That's correct, Justice Scalia, and Congress acknowledged that.
There's no dispute by the Government...
Justice Ginsburg: Did... I thought that at least we have some cases that... that recognize that there is... someone doesn't have to come forward and say, I want this material.
That was the Lamont case where the person wanted to get whatever was being sent and didn't want to say, oh yes, I want to get that material.
And Denver... didn't Denver Area have the similar thing that a customer doesn't have to say, I don't take that stuff off my screen...
Mr. Olson: In the Denver Area case, the person had to make an application to unblock the material, that that material... there's a big distinction in the Denver Area case because there wasn't a requirement of anonymity and a protection of privacy in the statute.
But I guess the bottom line, Justice Ginsburg, is that, yes, we have to acknowledge that there is some burden that is imposed when you're required to identify yourself into the purveyor of this material, but that... but you get to, you have the opportunity to do that in the privacy of your own home.
By statute, a criminal statute protects the privacy of your doing that, and the... and the balance that Congress struck, which is what this Court dealt with when it dealt with this statute two... on two previous occasions, the Court did acknowledge that there's a compelling governmental interest here, and that significant harm is being done on a daily basis.
The magnitude... we point this out on page 20 of our brief... that 11 million children visit these porn sites every week, and that between the ages of 15 and 17, 70 percent of the children, according to the statistics that we cite, visited porn site inadvertently.
It is very difficult to avoid.
As we describe in our brief, the use of innocuous names, I'd mentioned last time that I was here and it hasn't changed, whitehouse.com is a porn site.
Many of these things that the evidence suggest children visit and visit accidentally or they're shown to by their friends, and then it's very difficult to get off...
Justice Kennedy: Mr. Olson, the... the court of appeals addressed certain principal flaws that it saw in the statute, and I wish you... you could address those.
First, whether there material taken as a whole includes the whole Web site or... or the article and so forth, and you, I think, took a different position in the Third Circuit than you took here.
And... and the second is this question of the definition of the commercial use.
Could you... could you address those?
Mr. Olson: Yes.
We... we submit, and Congress was basing its definitions on the decisions of this Court with respect to taken as a whole, as this Court put it in the, I think it's the Kois case, K-o-i-s case, from Wisconsin, and that comes from... that comes from the Roth decision of this Court, the material to... for... for purposes of the performance of this statute must be taken not only in its content, but in its context.
Now, in many cases it won't be necessary to do that, but something that might appear to be harmful in one context, if it's examined as a whole and it turns out to be a part of an art exhibit or a anatomy book or a sex education program, that would... would have redeeming value.
It's this Court's decision that it's the protection of the communicator that the material be looked at as a whole.
Congress carefully built that into the statute, and your second point, Justice Kennedy, is commercial purveyors of this...
Justice Kennedy: Well, just... but... but before we leave the... the whole, what is... your position changed between the Third Circuit and here as to what we should look like, should we look at the whole... are you saying now we should look at the whole Web site?
Mr. Olson: You may look at the whole Web site and... and... and it may be appropriate to look at the whole Web site, it may not be necessary.
It may be in the defendant's interest.
We're not suggesting that the whole Web site should not be looked at...
Justice Kennedy: But I mean, how... how is the purveyor or the... the broadcaster supposed to know?
Mr. Olson: The broadcast... with respect to the...
Justice Kennedy: I mean, if we can't define what...
Mr. Olson: Well...
Justice Scalia: what the whole means...
Mr. Olson: Well, this Court... what... this Court has defined that.
It is... requires looking at the material in the context it's which... it's presented.
In addition, in...
Justice Kennedy: But it's presented on a screen.
Mr. Olson: It's presented on a screen...
Justice Kennedy: One... one screen at a time.
Mr. Olson: Certainly, Justice Kennedy, but one page in a book is presented at a time, one book in a library, one magazine in a bookstore.
Justice Kennedy: Yeah, but as we all know, this... this is... a book, we know about book, but the Web site is different, and that's where we're struggling.
Mr. Olson: Well, that's right, and we're saying that the entire Web site may be looked at as a whole to see the context in which the material is presented.
These are protections that the Court think are available and should be concluded within the statute to protect the communicator.
So if the communicator is accused of putting the material out there that otherwise might fit these definitions, and the person doing the communication said, you have to look at the whole Web site, this was in an art gallery and so forth and those pictures were a part of that exhibit, that's a... that's... the reason why Congress put that provision in there is that this Court repeatedly said it was necessary to protect First Amendment rights, and in Ginzburg, U.S. v. Ginzburg, the Court said the context might be considered in terms of how the manner is being purveyed, is there pandering going on, is it being put out, is...
Justice Ginsburg: But that's not obvious in the text of the statute, because it says, it says any image, any article, any image.
Then it could be any image taken as a whole.
Mr. Olson: But...
Justice Ginsburg: The question that... that I have is, you... you have clarified what the statute means in this respect, you've also said that harmful to minors, the minor in view is the normal 16-year-old, but the statute doesn't say that, and since we're dealing with a content restriction, is it good enough for you to give a narrowing construction of words that are susceptible to a broader meaning?
Mr. Olson: The... I have submit that the... what the... with the issue of as a whole as a part of the statute, taken in the context which it is given, it... it... the... this is... this is part 6 of the definition, which is on page 189a of the appendix to the cert petition... that the... the context of that is quite clear that the material is...
Justice Ginsburg: Well, three... two... yeah.
No, it was three, wasn't it, judges on the Court of Appeals for the Third Circuit missed it?
Mr. Olson: That's why we're here.
But the... the fact... and I... and I submit this.
In the first place, this Court has repeatedly said, and it said last year in... in connection with the McCain-Feingold case, that if there's a reasonable construction or a narrowing construction to which the statute is reason... readily susceptible, the Court will adopt it in order to avoid the constitutional question, but I don't even think that's necessary in this context.
The contact of... context of as a whole comes to this Court from the... comes to Congress through a series of definitions and actual cases by this Court, so... and the legislative history is manifestly clear that what Congress was trying to do in this pace... case... is to adopt these... this Court's definitions of those things, and if I can...
Justice Kennedy: Why did you...
Mr. Olson: Those were book cases.
Justice Scalia: pick 16-year-olds instead of 17-year-olds if you want to use the old... the oldest minors?
Where... how... how did you come up with 16-year-olds?
Mr. Olson: Because this Court...
Justice Scalia: And I mean, you know, maybe you... you won the battle by losing the war.
Mr. Olson: Well...
Justice Scalia: You... you're going to allow to come in without any restriction under this statute for a 5-year-old anything that wouldn't be... wouldn't be bad for a 16-year-old.
Mr. Olson: Well, there's two...
Justice Scalia: Is that a great victory?
Mr. Olson: There's two answers to that, Justice Scalia.
As this Court has repeatedly said, the Constitution does not require impossible definitions.
What is... what puts a person reasonably on notice is an appropriate way to go, and what... the... the reason why it was 16 rather than 17, of course, is because this Court criticized the previous statute because it drew the line at a different age.
It would be impossible, I submit, for Congress to select a different age for every different piece of material.
What Congress was trying to get at was the worst problem, the material that even with respect to 16-year-olds meets the standards set out in the statute.
That at least...
Chief Justice Rehnquist: How do we know that?
Justice Scalia: I... I doubt that very much.
I... I think Congress probably wanted a good deal of stuff that might be okay for 16-year-olds not to... not... not to be shown...
Mr. Olson: No, as a matter of fact...
Justice Scalia: to really young children.
Mr. Olson: As a matter of fact, Congress was very clear that what it was adopting is what this Court had previously considered in the American Booksellers case and those blinder racks and the... and the definition that came out of the American Booksellers case and the subsequent Fourth Circuit definition of that term in that case, of which this Court subsequently denied cert. Those bookseller blinder rack cases are exactly cited in the legislative history.
This is a remarkable instance of where Congress went through all of the things that the Court identified as problems with the previous statute, grappled with each of these definitions, adopted Court-approved definitions, standards, and limitations with respect to what this Court has agreed is a compelling problem.
If I can return to Justice Kennedy's concern about the issue of... take... the commercial pornographers, the statute is very clear that it refers to people that are in the business of profiting from this material, and then the Court... the statute goes on to say what is the business of being engaged in this and says that someone that takes time, effort, or labor in the regular course of a business of... of profiting from the transmission of this material.
So the legislative history, the previous iteration of the problem in this Court makes it clear that what Congress was concerned about and was... was not trying to capture with this statute the person that occasionally transmitted a... a photograph or an image, but someone who is in the business of doing this on a regular basis for profit.
Justice Kennedy: Well, but the... the doing... the this is having the whole Web site, and... and I, you know, I... I concede it'd be a very difficult task if we told the Congress you come... you come up with some definition of the commercial pornographer.
On the other hand, it seems to me that this is very... very sweeping.
We... even leaving aside the question of non-profit associations and so forth, people that have these Web sites will tell you that 100 percent of what they do is for profit.
Mr. Olson: Well, the answer to that, Justice Kennedy, is the... the fact that this is not any... that that definition, what the Congress adopted at the suggestion of this Court, was the same definition that this Court had approved in prior contexts with respect to obscenity, 18 U.S.C. 1466, and that definition, commercial use of obscenity, is something that prosecutors and courts have been dealt... been dealing with for a couple of... for over, well over a generation, for several decades.
So...
Justice Stevens: Mr. Olson, may I ask you a question about the... on the... the meaning of this very provision?
Supposing a beer company or a cigarette company used for advertising purposes regularly used material that would fit the definition.
Would they be violating the statute?
Mr. Olson: Yes, I believe they would, Justice Stevens, that if the idea is to sell... to use the material that fits the definition, I keep saying the word pornography because I want to use the shorthand, and that is to make commercial use of it by making money out of it, whether they sell...
Justice Stevens: Well, they're making money out of the sale of... of the product, which itself is not pornographic.
Mr. Olson: That's...
Justice Stevens: But... but if it's regular advertising, you think that would... that would meet it?
Mr. Olson: Yes, I... Congress would not have wanted to create that massive loophole, because the people that are... this is a multi-billion dollar business, the people that are doing it would readily adapt to that kind of a loophole.
The other one that was suggested by the respondents is that... and the, and by the Third Circuit... is that somehow Congress should have required that this would be the primary business that the person was engaged in.
Again, that would have been a massive loophole subject to constant litigation over what was the primary business and whether a person's surrounded the harmful material with an acre or two of unharmful material.
What Congress was getting at is that people that are in the business, knowing and knowing the character of the material, two other terms that are in the statute, that are making money distributing this material and who won't take the steps necessary to protect minors from them.
With respect to the argument that the respondents make and the court of appeals focused on that blocking at the home might somehow be a problem, Congress carefully considered that, decided it would not be an acceptable solution, except that it did at the same time enact... that it enacted COPA, required that the Internet service providers make that type of information available to people in their homes so that that could be in addition to what COPA requires.
The fact is that blocking material in the home is both underinclusive and overinclusive.
It requires the consumer to go out and buy a product and spend money to adapt it to technological improvements that are happening all the times, and it's readily avoidable.
I did the same, this again is outside the record, but I did this, anyone can do this, the same experiment over the weekend.
I went to Google and I typed in disable filter and you push the button and you will get a screen full of programs that will tell you step by step how to dismantle the computer so your parents won't know about it.
It is that easy, and you can put it back on.
These things are readily avoidable.
So the burden that Congress was... was... the burden that Congress imposed at the suggestion of this Court is to put the burden on the person or persons making money on a regular basis from this product to take the minimal steps necessary to prevent the damage that's done every day by minors by allowing people to use mechanisms that are already in place.
This Court mentioned it and Congress mentioned it, this adult check mechanism, that's another thing that... that anyone can check out.
Type in adult... adult ID, and then press the button and you will find, I think there were 25 sites that mention in the congressional history which will provide an adult identification at a relatively nominal cost, I think it was 19.95 for a several-month period or something like that, and the availability is such that the steps that can be followed take a matter of less than a couple of minutes.
So in the privacy of the home, the adult who wants material protected by the Constitution, in order to avoid damage to children in the privacy of the home with statutory protection as to anonymity, the... the problem can... it... it cannot be totally solved, but this is an important major step and this is an example of Congress following the directions of this Court as to how constitutionally to do it.
Mr. Chief Justice, I'd like to reserve the balance of my time.
Argument of Ann E. Beeson
Chief Justice Rehnquist: Very well, General Olson.
Ms. Beeson, we'll hear from you.
Mr. Beeson: Mr. Chief Justice, and may it please the Court:
COPA violates the First Amendment for two independent reasons.
First, it is a criminal statute that suppresses a wide range of protected speech between adults on the Web, and second, the Government has a range of more effective, less restrictive tools available to protect minors.
The Government's attempt to narrow the range of speech that is affected by this statute defy the law's plain language, the record, and plain common sense.
Even under the Government's interpretation, COPA criminalizes speech that under any definition adults have the right to access.
It criminalizes a depiction or even a description of nudity or even a description or depiction of the female breast.
It does not just cover sexual conduct.
Justice Breyer: Now, I thought what it said is it picks up the definition that this Court has used for obscenity.
I thought that definition was primarily an appeal to the prurient interest and it cannot have any... it has to lack, taken as a whole, serious literary, artistic, political, or scientific value, and it adds the word, for minors.
For a 16 or 17-year-old, I'm not sure there'd be much difference.
Mr. Beeson: I...
Justice Breyer: And... and so, I looked through all your stuff, or not all of it, but some of it, and I'd like you to point out for me, what is the material there that has that serious scientific value, which you have quite a lot of...
Mr. Beeson: Yes.
Justice Breyer: but that the statute would forbid?
Mr. Beeson: Yes.
Two points, Your Honor.
First, the obscenity statute actually covers only sexual conduct.
It does not cover mere depictions of... of nudity and it does not cover just an image of the female breast, so I think that that's an important difference.
Justice Breyer: It has to be an image or whatever image they are that appeal to the prurient interest.
Now, that to me is material that does not communicate.
Mr. Beeson: Yes.
Justice Breyer: It is material that is looking for a kind of emotional response, period.
No communication and trying to elicit a certain emotion response, all right?
And it lacks serious artistic or cultural or other value, all right?
Now, what is the material that you point to, because most of yours I think didn't fit that definition.
In fact, I couldn't find one that did fit it.
Mr. Beeson: Your Honor...
Justice Breyer: So I want you to tell me which is the one that fits it.
Mr. Beeson: Yes, and, Your Honor, the question ultimately is what a speaker on the Web who communicates material like this will do, what they think is covered by the law, whether they will self-censor everything they think...
Justice Breyer: Oh, I would imagine it's what we say is covered by the law.
Mr. Beeson: Your Honor, I don't think so, under this Court's precedents.
In other words, if the... if the record shows, and if the law covers, material that clearly has value for adults but lacks value for minors, there has to be some distinction there or otherwise this turns into the obscenity statute.
There is no difference.
In other words, there is material that has...
Chief Justice Rehnquist: You're going a little fast.
Would you slow down, Ms. Beeson?
I didn't get your last...
Mr. Beeson: Sure.
Chief Justice Rehnquist: clause.
Mr. Beeson: Sure, sure, Your Honor, of course.
The point is that the serious value for minors clause does not protect as much material as the serious value for adults clause in the obscenity statute.
That by definition must be true, and in fact, as a society, just even using common sense...
Justice Breyer: Did you get my question?
I wanted you, I was serious in my question.
Mr. Beeson: Yes.
Justice Breyer: I want to know, I would like some citations.
Justice Kennedy: You don't have to...
Mr. Beeson: Absolutely.
Justice Breyer: hold it up.
Mr. Beeson: Yes, Your Honor.
Justice Breyer: But I... I want to know what you think, in other words, are your prime examples, because I'm tempted to look at them, and if I thought that this statute didn't cover it, why not say so?
Why not say all these things that the ACLU is worried about, given the Government's effort, are outside the statute?
Would that take care of your problem?
But tell me which they are.
Mr. Beeson: Yes, let me do that.
First, there are numerous discussions in the... in the record of lesbian and gay sexual pleasure and the pleasure of sex outdoors.
This is not sex education materials.
These are materials intended for adults which explicitly discuss sexual pleasure.
Let me give a few citations: PlanetOut, in the joint appendix, 658 to 69; BlackStripe, the joint appendix, 753 to 57; and the Susie Bright column
She is a sex therapist, she is... she talks about sexual pleasure.
She is not talking about educational material.
The purpose of her columns are to invite adults to discuss and to read about sexual pleasure if they want...
Justice Breyer: Exactly, and I don't think that that's prurient.
I think a discussion about sex is a totally different thing from a... a discussion that is itself supposed to be part of a sexual response, all right?
They're night and day different.
Mr. Beeson: Your...
Justice Breyer: Now... now you tell me why that isn't so.
Mr. Beeson: Your Honor, let me put this another way.
This statute covers written text.
All of the exhibits that have been put in by the Government are of images.
I don't know what else could be covered that is written text that, you know, other than our client's material, in other words, what is left.
That is what they are.
They are... they are prurient discussions, they are intended for adults, they have value for adults, but they lack value for minors.
That is the concern.
It's a very big concern.
There are a lot of people on the Web that communicate that.
And as a society, again, there's a lot of material in this, we have defined a wide range of material as having value for adults and lacking value for even older minors.
A 16-year-old cannot get into an R-rated movie.
If you're a speaker on the Web and you communicate material that's like Bertolucci films, for example, or Sex and the City, you are going to be very, very worried.
The Government has made your speech a crime and you have only three options under the statute.
All of those options violate the First Amendment.
The first option is that you can take a risk and leave your speech up there, Justice Breyer, as you're saying, you know, leave it up there.
You're Susie Bright and you think that your... your speech is not covered.
What happens?
You can go to jail, not because you made that column deliberately available to a minor, but because you merely displayed the column to the general public.
That is a pure violation of this Court's rule in Butler v. Michigan that you cannot make it a crime to display material to adults in the name of protecting children.
The second option.
You're worried, you don't want to go to jail, you self-censor.
Everything that you have self-censored, adults had the right to access.
It violates the First Amendment for the Government to do this through the statute.
The third option is that you can set up costly screens, which the record shows drive away your users.
The district court and the court of appeals also specifically found that because of the risk of criminal penalties, it's quite likely that you never get to the defenses because the vast majority of rational speakers, when faced with this choice, are going to self-censor, and that is speech that adults had the right to get.
This Court, for that reason...
Chief Justice Rehnquist: You're talking about self-censoring.
You're meaning an interpretation of the statute that is not warranted by the... the proper interpretation, I take it?
Mr. Beeson: No, I'm not.
I... no, I'm not, Your Honor.
I think this is very different than the... than that problem, the self-censorship problem with the obscenity statute, and here's why.
Under the obscenity statute, if you self-censor material that is actually obscene, there's no First Amendment problem.
Chief Justice Rehnquist: That's the whole point of the thing.
Mr. Beeson: Exactly.
There's no First Amendment problem.
That speech is illegal.
If you self-censor speech under COPA that we can all agree is harmful to minors, whatever that is, it's harmful to minors, you have self-censored material that adults have the right to access.
That's the fundamental difference, and that is why this self-censorship is problem with this statute is so much broader than it... than it could ever be in the obscenity statute.
Now, you also have...
Justice Scalia: If... if you run that self-censor, I mean, you... you could not have any laws protect.
I... I suppose the laws that require certain categories of materials to be put in these, what do we call, the blinder, blinder racks, I... I suppose that... that's invalid on the same basis because those magazines that want to appear in the general readership rack will self-censor them... themselves so that they won't be put in there, right?
So all of those, and I think every state has laws like that, they're all invalid because of self-censorship?
Mr. Beeson: Your Honor, we think that... first of all, this Court has never upheld an... a harmful to minors display statute, and in fact...
Justice Scalia: I understand we haven't, but what... what's your view?
The argument you're making suggests that they're all bad.
Mr. Beeson: We think that that is one of the three First Amendment burdens that these kinds of statutes impose.
The first one is the self-censorship problem.
The second one...
Justice Kennedy: All right.
Justice Scalia: But that alone is not enough, you think?
Mr. Beeson: We think that it would be enough...
Justice Stevens: Okay.
Mr. Beeson: but the point is under COPA...
Justice Scalia: Then all the blinder racks are bad?
Mr. Beeson: And under... under this law... under this law, Your... Your Honor, there are two additional burdens which are much greater than the online blinder rack statutes, and in fact, it's quite notable that even though some states, it's about half of the states that have display statutes as opposed to statutes like Ginsberg that make it a crime to simply sell directly to a child material that's harmful to minors, those same states that have passed and in some cases upheld offline display statutes have now struck down online display statutes because they have reached the same conclusion that the district court and the appellate court in this case found and that is that there is...
Justice Scalia: Well, their supreme courts did, their supreme courts did.
I mean, don't represent it as a judgment of the people of the states by their legislature.
You're saying that... that there were state supreme courts that struck it down, right?
Mr. Beeson: I'm saying that there are... there were Federal courts that have struck down now seven state online harmful to minor statutes because they have recognized the distinction between those statutes in the online context and the offline context, and let me just get to that second problem, you know, self-censorship being the first problem, self-censorship of speech that under any definition is protected for adults.
The second one, the... let's just assume that you... that you want to go ahead and try to set up these screens, first of all, a credit card is a form of payment, it is not an ID.
This is not just a matter of flashing your ID if you're a young-looking adult and the bookstore owner is not quite sure that you're... you're an adult yet.
This is a matter of every single adult having to... to provide their credit card to a Web site every time they visit a new Web site.
The...
Justice Ginsburg: But there's a... there's an alternative, the ID, you... it doesn't have to be a credit card.
Mr. Beeson: Your Honor, there is an alternative in the statute.
What the record shows is that to get an adult ID, the primary way to get that is through a credit card.
So another problem you have very similar to the problem identified by this Court in Reno v. ACLU is that, you know, almost all adults without credit cards have no way to access this speech at all, and again, you don't even... you don't even get to this problem if, of course, the Web speaker has chosen the first option and has self-censored and not even tried to set up the screens.
So the other... the... the other thing that's very different, of course, about the blinder rack statutes is that none of them required the adults to actually register or disclose their identity.
Credit cards create a permanent transaction, a permanent record of the transaction, and the... the potential for abuse, because they are a form of payment, is much greater than merely flashing an ID.
Justice Stevens: Yes, but the Government says that there's a statutory protection that they cannot... that the... the person who gets the information can't pass it on to third parties.
Mr. Beeson: Your Honor, there was actually... there actually was a similar protection in the Denver Area case, which this Court found irrelevant given the remaining burden on... on adults having to identify themselves before they seek access.
In both the Denver Area case and in the Playboy case, this course... Court... struck down very similar burdens on adult speech.
The burden here is much greater because the quantity and diversity of speech affected is much greater and the number of users affected is greater.
I would also like to point out that there's...
Justice Kennedy: Well...
Mr. Beeson: a fairly big loophole in that privacy protection, which is... which is right in the...
Chief Justice Rehnquist: Well, who... who says that they're guaranteed anonymity?
I mean, if you go buy a gun, you're certainly not guaranteed anonymity.
Mr. Beeson: Your Honor, the anonymity... there actually... this Court has held, of course, that there is a right to access...
Justice O'Connor: When... what...
Mr. Beeson: protected speech anonymously, but that is not really what's at issue here.
What's at issue is what the effect of the law is on protected speech for adults, and what the anonymity cases show is that if you have to give up your anonymity, a lot of people are going to be deterred, and that's what the record in this case shows too.
General Olson acted as if there was nothing in the record about the number of times.
In fact, there is quite a lot in the record.
Chief Justice Rehnquist: Well, you... you say you're not relying on what you refer to as anonymity cases for this proposition?
Mr. Beeson: I'm saying that I think that those cases are relevant only to the extent that they show that anonymity often deters... that the... the loss of anonymity will deter viewers.
Here there is evidence, and it isn't even just the... the loss of anonymity that's the problem, it's also the stigma of being associated with material that's been labeled by the Government as illegal, and that was a stigma that the Court also found relevant in striking down the Denver Area case.
I wanted to just quick...
Justice Kennedy: If... if it really... if it really were illegal, then the stigma would be irrelevant, don't you think?
Mr. Beeson: The... the... if it were illegal to?
Justice Kennedy: Suppose you were stigmatized by having subscribed to poor... to obscenity.
You couldn't object to that.
Mr. Beeson: No, no, no.
But here, again, the... the speech is protected for adults.
They have the right to access as... as the Court held in Lamont and in Denver Area and in Playboy.
Justice Kennedy: Now, you have a third... the third point.
The first is there's too great a risk of self-censorship.
The second is a screening requires loss of anonymity, and what's the third?
Mr. Beeson: The... the third was the four... first point I made, Your Honor, which is that if you... the defenses don't help you at all if you take a risk and... and assume that your speech is protected and in fact the Government thinks it isn't.
You know, you're Susie Bright, you put the column up, you think it's, you know, you think it's okay.
The defenses don't help you and you're going to jail, not because you gave it deliberately to a child, but because you displayed it to an adult.
Justice Kennedy: Well, that seems to me just really much, very much like the point that... that the statute sweeps too broadly, there's a risk of too great self-censorship.
That's really the same point, isn't it?
Mr. Beeson: Your Honor, I... I don't think it is the same point.
I really think it's a... it's a very distinct point, because the point is the speaker has two choices.
They can either take a risk and display the speech, in which case they go to jail.
They go to jail not because they gave it to a child, that's the only kind of a statute this Court has upheld.
That's the... that's what they upheld in Ginsberg is that you can make it a crime to deliberately sell this material to the child.
All the... all the... all the Web publisher has done under this statute that sends him to jail is to simply make it available to the general reading public.
Justice Kennedy: All right.
Justice Breyer: Suppose... what in your opinion is the right way for Congress to go about this?
That is, I assume, and you may not assume, but assume with me that Congress is not interested in Susie Bright.
That's all fine.
They're not really interested in your examples.
What they're interested in are... is the professional pornographer and we know who that is and we know what it looks like, and it's too tough to go after them with the obscenity statutes because they say artistic, whatever it is, there's a set of reasons that hasn't been successful.
So here's their solution.
It's called zoning.
We won't stop people from looking at the worst stuff if they want to and if they're adults, but you have to take the subway and go out of Times Square, or if you're on the Internet, you have to identify that you're not a child.
Now, we know that's a burden, but it's far more consistent with the First Amendment to let people look at anything they want including this worst possible stuff, as long as they're not hurting anybody else, and the way to deal with this is to zone just like we used to do in libraries.
If you want to see the stuff that's locked up, you have to go to the librarian and identify yourself and show you're not a child and she'll open it with a key, that used to happen, and you could go look at it, all right?
That's Congress' solution.
Now, if that is not a good solution, what is?
Is there no solution?
Mr. Beeson: Yes, there are a number of solutions which Congress has now passed which don't present the... the problems that this statute does.
This is not a zoning statute, it's a criminal statute, and because it's a criminal statute it's far more likely to lead to the self-censorship that... that causes the big problem here.
We now have a Federal filtering law that this Court upheld, so any child that's accessing the Internet in a school or a public library has already... is protected from most of these images.
One of the most... one of the important cites in the record that I want to mention here, the Government put in more exhibits...
Justice Scalia: Your organization didn't... didn't support that... that statute.
Mr. Beeson: I'm sorry.
[Laughter]
Yeah.
Justice Breyer: Also, what else, because as you know from things I've written, I'm very skeptical about the ability of filtering to deal with millions of families where there are no parents at home during the day and it's very tough.
So... so that's one.
I'll look at that.
What's... what's two?
Mr. Beeson: If I could just mention the cite to the record, Your Honor, because I think it's very important.
The Government put in a lot of sexually explicit images as their exhibits in this case.
They stipulated that every one of the major filtering products blocked every one of the images that they submitted as being a problem in this case.
Justice Breyer: Where's that at in the record?
Mr. Beeson: That is in the joint appendix beginning at page 170, that's the joint stipulation between the parties, numbers 45 to 47.
That is a pretty ringing endorsement for filtering software, and again, the district court specifically found...
Justice Scalia: If it's working what do you do about the Solicitor General's contention that it's easy to turn the filters off?
Mr. Beeson: Your Honor, first of all, that is not in the record.
What the record shows and what the district court found was that the filters are more effective than COPA, and the reason that they're more effective...
Chief Justice Rehnquist: When they're working.
Justice Scalia: Do... do you contend... I mean, if... if we're uncertain whether it's easy to turn them off or not, let's assume it's not in the record.
I... it seems to me it's not a good argument on your part unless... unless you maintain, and perhaps can show from the record, that it is... it is not easy to turn them off.
Mr. Beeson: Your... Your Honor, under this Court's long-standing precedents, any content-based regulation of speech is presumptively invalid.
It is the Government's burden to show that there is no less restrictive alternative, and they did not meet this burden under the clear record in this case.
The district court very clearly found that the filters were at least as effective.
They can actually block material that is not even commercial that comes from...
Justice Breyer: When working, when working...
Mr. Beeson: foreign Web sites.
Justice Scalia: When working.
The district court didn't make any finding...
Mr. Beeson: But...
Justice Scalia: about how easy it is to disable them, did it?
Mr. Beeson: Because the Government didn't put on any evidence, which is why he said he had to go outside the record to make that point, when we have only the record to... to base the decision on here.
Justice Breyer, to get to the other options that are available, the other things that Congress can do, one that I want to mention is a new statute that was passed, 18 U.S.C.... I believe it's 2252(b)... it gets at the whitehouse.com problem.
This is a law that penalizes sites that knowingly use misleading domain names, like whitehouse.com, in order to lure children to this sites inadvertently.
That is another law...
Justice Souter: Statute... has that statute been challenged yet?
Mr. Beeson: That... that statute has not been challenged.
It is on the books now, and... and therefore it is...
Justice Scalia: You think that's a good one, though?
Mr. Beeson: It is certainly narrower, Your Honor, than this statute.
Justice Scalia: I understand that, but you think it's good, so we can count on the fact that that one's okay?
Unidentified Justice: [Laughter]
Mr. Beeson: I will argue only that it's...
Justice O'Connor: You will demur.
Mr. Beeson: clearly narrower.
And one of the reasons that it's narrower, all... all jokes aside, is because it gets more clearly at... at what the statute is aiming to get at, which is, you know, luring inadvertent viewers, especially minors, to particular sites, whereas this... this law makes it a crime for anyone, any individual running a small business, you know, Mitch Tepper, our client who runs a sexual health network...
Justice Breyer: No, no, I understand it's a lot narrower.
I've got... I agree with you about that.
I just want to be sure you don't stop before I've listed all the alternatives that you think are possible.
Mr. Beeson: Yes, Your Honor, and thank you for returning me to my... to my task there.
Another one is a law that was passed the same time that COPA was passed... passed, which requires Internet service providers to give all customers information about their filters.
Another misconception I think left by General Olson, you don't have to go out and buy another product.
The record shows that all of the major filtering, all of the major Internet service providers provide these parental controls as a... as a default for parents.
When you... when you set up your account with AOL, it asks you right then and there, you don't have to pay extra, whether you want to install the parental controls.
There is also a new law...
Justice Scalia: But why did Congress not think these were adequate?
I can't understand it.
I mean, if that's so obvious, why... why didn't Congress see that, that obvious fact?
Mr. Beeson: Your Honor, part of the problem, of course, is that most of these laws that I'm mentioning were passed after COPA was passed.
COPA was passed very early on in this debate when the Internet was not as well understood as it is now.
Frankly, the... the solutions that it has thought up since then have been better, they've been narrower, and they have had less...
Justice Breyer: Screening existed.
Justice Scalia: They certainly had, you know, you're relying heavily on that.
Those... those technologies existed and Congress surely considered them and thought it was inadequate for some reason.
Mr. Beeson: Your Honor, the record in the case shows that it's at least as adequate and where, as here, there's a record that shows that there is a broad chilling effect on protected speech for adults because this is a criminal statute, those... those tools are... are...
Justice Breyer: But you're back to your first point now.
I've got down filters, I understand that, and I've got the domain names, and I want to know if there's anything else.
Mr. Beeson: Yes.
There are two other points I would like to make on that.
One is there's... Congress has now created something called the Dot Kids domain, which is a safe environment in which there are sites that are reviewed that are intended just for children.
That Dot Kids domain can interact with the filters in a way that allows a parent to set up the AOL account, for example, so that their younger child has access only to the sites in the Dot Kids domain.
Justice Kennedy: What... what are... what are the age limits that are... are specified there?
Is there something for the 6-, 7-year-old group and then up to the 15-, 14-, 15-year-old group?
Mr. Beeson: Your Honor, I believe, I don't have that statute in front of me, but I believe that that... that the idea is to set up a safe environment for children 12 and under, that that... that's the way that... that it's defined there.
And then finally, of course, as we mentioned, vigorous enforcement of the obscenity law could solve some of these problems.
The Government has not been doing that, and I think that before...
Justice Breyer: But that, of course, in a sense is contrary to the... I mean, from a First Amendment point of view, isn't it preferable to draw obscenity prosecution lines favorably towards free speech?
And that's... I mention that because that seems to me the basic First Amendment dilemma that I am having, that it is actually preferable to lean in the direction of letting the adults go and see anything they want, virtually anything.
But that means that there'd be some burden attached, and the burden that's attached is the key to the spot... locked room in the library, the taking New York Times... Times Square and moving it out to Yonkers or some place, and here that you have to identify yourself as an adult.
That's the true dilemma I'm having, so when you suddenly say, oh well, let's, you know, launch a crusade against the obscenity, from a First Amendment perspective, that might be worse.
So what do you think?
Mr. Beeson: Your Honor, obscenity...
Justice Scalia: You don't really want that anyway, do you?
Mr. Beeson: Obscenity is by definition speech that is not protected by the First Amendment.
Justice Breyer: Yes, but there are a lot of hard lines in this area, and a set of prosecutors...
Mr. Beeson: There...
Justice Breyer: who are now determined to go, to... to... to crusade in this area could draw a lot of those lines differently from say you would.
Mr. Beeson: Well, and I... and I, of course, am not trying to say that those prosecutions wouldn't ever raise a First Amendment issue.
Of course they would... they would.
But this statute raises a First Amendment question in every single application.
Every single time this statute is applied, it violates the First Amendment because the only options available to speakers would either put them in jail for making their speech generally available to the public or... or prevent adults from accessing that... that protected speech because either the speaker has self-censored or they've put it all behind a screen that the record shows drives... drives away the users, and I... I think I was going to make just a another cite to the record that I think is an important one to note, and that is that the Government's own expert conceded that thousands of users would be deterred from any single Web site as the result of any registration system, and that is, again, similar to the evidence that the Court relied on in striking down the statutes regulating indecency in cable television in both the Playboy and the Denver Area cases.
This statute has greater problems because it's a criminal statute.
Those statutes, of course, just involve civil penalties that... oh, I thought I had that cite to give you but I actually don't... I'll try to... I'll try to find it in a moment.
The... the district court in its findings of facts specifically noted that point about the Government's expert conceding thousands of... of users.
Justice Stevens: But, just clarify it for a minute.
The reason that thousands are deterred are, one, they don't want to self-identify, and two, they're unable to have credit cards or something of that kind.
Those are the two reasons?
Mr. Beeson: Yes, and they don't want to self-identify because they're too embarrassed or because they don't want to be stigmatized by being associated with the content.
There is an additional reason, which the record showed, which I think is important to close with, and that is the nature of this medium.
This is an... a wholly unprecedented medium of communication.
This Court found that in Reno v. ACLU.
It has extremely low barriers to entry.
It allows users to access millions of sites just through this linking process.
The record also showed that by setting up these barriers that kind of destroyed the nature of accessing information on the Internet.
Justice Stevens: Would you tell me your response to General Olson's argument that the self-identification problem is not serious because there's a restraint on the... on the transmitter's use of that private information?
Mr. Beeson: I... I'm sorry, I didn't follow you, Justice Stevens.
Justice Stevens: Well, his answer to your self-identification problem is that self-identification to someone who by law is not allowed to pass that self-identification material on to third parties.
Mr. Beeson: Your Honor, this Court has... has never upheld any statute which...
Justice Stevens: But why shouldn't we uphold that argument?
Mr. Beeson: Because it's so clear that it would deter adults from accessing protected speech.
I think that that is...
Justice Stevens: But I don't see if you rely on your reason for deterrence is fear of self-identification, and if the statute makes that fear groundless, I'm not sure your argument is persuasive.
Mr. Beeson: Oh, let me then cite to one more thing, which I meant to get to before and I didn't, and that is that there is a very big loophole in the privacy protection in the law and that is... it's under (d), let me quickly find it... under (d)(1), there was an exception... (d)(2), exceptions to the privacy protection, any... any person making a disclosure is not covered, I mean, can make the disclosure as long as it's necessary to conduct a legitimate business activity related to making the communication.
That's a fairly big loophole that I think would make a lot of users very nervous, and of course, the... the initial problem is that they don't want to give their credit card or their... or their ID even to the Web site.
I mean, these are Web sites that they've never seen before.
They're surfing the Web.
They're not trusted local stores, they're... they're unknown Web sites.
Justice Stevens: Yes, but... but millions of users of the Web give their credit card number in order to buy books or something else that's for sale.
I don't understand why that's such a terrible invasion of privacy.
Mr. Beeson: Your Honor, in fact, what the record showed in this case was that the only time that Internet users were comfortable giving their credit card was when they were ready to make a purchase.
This law applies to... as General Olson conceded, to just making the speech available with... surrounded by advertising.
Anybody who did that, it doesn't just apply to speakers who are selling their speech on the Web.
In closing, I just want to say again that this Court has repeatedly held that the Government can't burn down the house to roast the pig, especially with so many other tools available to protect minors more effectively than this statute does.
The Government cannot send adults to jail for displaying protected speech in the name of protecting children.
Thank you.
Rebuttal of Gen Theodore B. Olson
Chief Justice Rehnquist: Thank you, Ms. Beeson.
General Olson, you have four minutes remaining.
Mr. Olson: Thank you, Mr. Chief Justice.
Justice Scalia: Could you address that exception to the disclosure thing that Ms. Beeson just brought to our attention?
Mr. Olson: Yes.
I don't... I don't read it that way.
I don't think that's the... the exception is intended to... to allow the person safe harbor by performing the function of the adult check.
I mean, I think that's what it's intended for...
Justice Stevens: Where...
Mr. Olson: and it hasn't been, hasn't been identified before as a giant loophole in the statute, and I don't think it's susceptible to that construction.
I wanted to go back to where Justice Breyer started, what would be covered by the statute?
The examples given by the respondents were addressed in the Government's brief and all three of the... all of those examples we don't believe are covered by the statute.
Susie Bright is not within, doesn't fit within the prurient interest in the... and would be defended on... this is reminiscent of what the Court was facing in the American Booksellers case, and the respondents here were involved in that one as an amicus, were 16 examples were cited as the house was going to fall down, the sky was going to fall.
This Court decided to remand that to the... the Virginia Supreme Court and the Virginia Supreme Court found that none of the 16 parade of horribles would be even covered by the statute.
That's this all over again, and it flies in the face of the requirement by this Court to find a reasonable, a construction of the statute that would be, to which it would be reasonably susceptible that would deal with those constitutional problems.
And... and these definitions, these definitions have already been approved with respect to minors in the Ginsberg v. New York case, so we're not... and that's a couple of... several decades ago, so we're not dealing with something that is brand new.
Susie Bright, by the way, writes for Salon magazine.
In order to get her column you have to register.
Adult IDs, you can get them with credit cards, you can get them with a check, and as we point out in footnote 2 of our brief, you can use a driver's license or a passport, so you don't have to necessarily use a credit card to do that.
The... the deterrence issue, all of the... all of the... all the court of... the lower courts decided is that some people may be deterred, may be deterred, and some people may be... find this as an impediment.
Some people may engage in self-center... self-censorship, and to the extent that there are thousands of people, that's an infinitesimal quantity of what's on... on the Web in itself.
The most important point here, with respect to alternatives, Congress considered, as this Court suggested it should, the various alternatives.
The House, the Senate report's good, but the House report, 775, which is cited all over the briefs on pages 16 through 20 considered all of these examples, the tagging, the filtering and so forth and went through all of the reasons why Congress found that they would not be effective and that what COPA was providing would be effective, that there were costs, the burden should be on the commercial purveyor of the material and so forth.
Congress went through all of these things and made specific findings.
At the end of the day, it's important to emphasize this is a facial challenge to a statute constructed according to this Court's guidance, according to this Court's decisions as to how to deal with a very serious national problem.
It contains a scienter requirement the purveyor of this material must know what's being done, he must be engaged in the regular course of business, and I can't recall... I think it was you, Justice Breyer... who asked the question, how else could Congress have done it?
This is a national problem.
It's serious.
It's causing irreparable injury to our most important resource, our children.
Congress has been struggling with this.
It listened to what this course had... Court had to say.
It examined the nature of the medium, because this is a different medium, but one of the wonderful things about this medium is also the... one of the potentially dangerous parts of this medium.
It's easily accessible to children in the home and it's important that the Government be... this Nation and its three branches of government be concerned with the care and welfare of children independent of the parents' responsibility.
So this is an example of a serious national problem, Congress following conscientiously this Court's guidance as to how to solve the problem and then laying it out for this Court as to how it did so, and it came up with this statute, which is constitutional.
Chief Justice Rehnquist: Thank you, General Olson.
The case is submitted.
Justice O'Connor: The honorable court is now adjourned until tomorrow at ten o'clock.
