Talk about strange bedfellows. Gynecologists. Condom merchants. “Riotgrrl.” Not exactly the folks journalists would think of first when listing First Amendment allies.
Yet, over the past seven years, they are among the entities SPJ has joined in significant First Amendment battles.
Want more irony? How about the fact that these alliances were formed less out of concern for freedom of the press than by a desire to preserve individual privacy, intellectual choice and the availability of reproductive health and safety information. And that their stated goal was to strike down – or at least delay – federal laws ostensibly aimed at curbing the transfer of pornography or other material deemed offensive over the Internet. SPJ even has joined a coalition fighting federal controls on child pornography.
First, let’s be clear. SPJ did not get into these issues to endorse pornography or make it easier for its purveyors to exploit children. We became involved because Congress overstepped its bounds and threatened First Amendment freedoms.
Specifically, Congress and the White House have created a handful of federal anti-obscenity laws in recent years, including the Communications Decency Act (CDA), the Child Pornography Prevention Act (CPPA), the Children’s Online Protection Act (COPA), and the Children’s Internet Protection Act (CIPA).
At one time or another, SPJ has helped challenge all of them in court, guided by the thoughtful legal advice of our First Amendment law firm of Baker & Hostetler in Washington, D.C. For B & H attorney Bruce Brown, there are a number of sound reasons for SPJ to be involved.
• Getting a foot in the door.“These were the first free speech battles in the Internet Age,” Brown said. “Journalists wanted to be there at the table when the Supreme Court was taking these cases of first impression.”
• Anticipating future problems. Just because journalism isn’t threatened now doesn’t mean it couldn’t be threatened later. “Once Congress starts passing laws affecting First Amendment rights too broadly,” Brown said, “the news media could be next.”
•Holding Congress accountable. Congress simply went too far in passing these laws and, in Brown’s words, “prohibited too much activity to further some social good.”
Now, to the cases.
Ever since the public’s use of the Internet exploded in the early 1990s, there have been concerns about the potential for people, especially children, to be exposed to unwanted and unsolicited graphic sexual material. Congress first got into the act with the Communications Decency Act of 1996. While some aspects of the CDA were acceptable (such as the provision that Internet service providers such as America Online could not be held liable for defamatory postings by its members) the act essentially made it a crime to publish pornography on the Internet for commercial purposes.
That provision galvanized the American Civil Liberties Union, the Electronic Privacy Information Center, the American Library Association and others into action. (SPJ eventually would sign on as a friend of the court as the case moved along.)
In February of 1996, the ACLU struck first, filing suit in federal court in Philadelphia to overturn the CDA. Four months later, a three-judge federal panel issued a preliminary injunction against the indecency portions of the act but left the remainder of it standing. A year later, in June 1997, the U.S. Supreme Court agreed.
Meanwhile, Congress passed the Child Pornography Prevention Act in 1996. The problem with that law was the overly broad definition of “child pornography.” The ACLU and others challenged the law in federal court in California’s northern district. They lost in district court in 1997, then received a mixed ruling at the 9th U.S. Circuit Court of Appeals in 1999, setting the stage for a Supreme Court appeal.
Admittedly, some within SPJ were a bit hesitant to sign onto a challenge that could be interpreted as supporting pornographers. However, we eventually agreed that the First Amendment principle was more important and worth the battle. So we joined.
Even as the CPPA was in the 9th Circuit, U.S. Sens. Ernest Hollings, D-S.C., and John McCain, R-Ariz., shepherded a new version of the CDA through Congress. The Children’s Online Protection Act of 1998 (COPA) again tried to block pornography on the Internet at its source, making it a crime to distribute porn on the web for commercial purposes.
Once again, a broad coalition of opponents came together to challenge the bill in the same Philadelphia court where the CDA had been enjoined. This time, the coalition included not only the ACLU and EPIC, but a variety of others, ranging from the “Obgyn.net” women’s health Web site to the “safe sex shop” Condomania to the Philadelphia Gay News to the “Riotgrrl” alternative women’s Web site to Androgyny Books Inc.
Once again, the district court in Philadelphia agreed with the coalition and ruled against COPA. In June of 2000, the 3rd U.S. Circuit Court of Appeals came to the same conclusion, noting that the law’s reliance on “contemporary community standards” made it fatally flawed.
In September 2001, as COPA headed to the Supreme Court, SPJ again signed on as an amicus, joining specifically with the Washington-based Center for Democracy and Technology.
Meanwhile, Congress was at it again, this time aiming to stop pornography from reaching libraries, schools and other public entities with Internet access. The Children’s Internet Protection Act (CIPA) required those institutions to install filters to screen out pornographic content or face the loss of federal dollars.
Once again, news reporting wasn’t at the heart of the issue. But as Brown notes, the same filter that screens out obscenities also could screen out legitimate journalism. “What if it blocks all articles about breast cancer because of the word ‘breast’?” he asked. “The Society decided it had to be concerned about both ends – the dissemination and the receiving of information.”
Jump ahead to 2002. In April, the Supreme Court struck down the Child Pornography Prevention Act, agreeing that the law was overly broad in its definitions.
Then, in May, the high court sent COPA back to the 3rd Circuit, saying that the lower court’s reliance on the “community standards” issue was not sufficient to overturn the law. It’s important to note that the high court did not uphold COPA. Nor did it remove the injunction on it. The justices simply sent it back for further consideration.
Later in May, it was CIPA’s turn in the spotlight. On May 31, a three-judge panel in the 3rd Circuit ruled against it, giving free speech opponents yet another victory. That case is now on its way to the Supreme Court, with SPJ again among the advocates.
The most recent milestone came in February of this year, when the 3rd Circuit again ruled that COPA was unconstitutional. This time, the court ruled that the statute is an overly broad restriction on free speech and would fail a test of “strict scrutiny.” This might be the rationale the Supreme Court needs to kill COPA once and for all. (The 3rd Circuit’s opinion is available at http://www.ca3.uscourts.gov/
Admittedly, signing onto cases that may seem only tangentially connected to journalism and deal with potentially explosive moral issues has given some of us pause. In the end, however, the landmark nature of the cases, combined with their First Amendment implications, have made our choice clear. These are fights that deserve our support.
Just remember, it isn’t about the content. It’s about protecting the forum for all of us.
Ian Marquand is special projects coordinator for the Montana Television Network. He is chairman of SPJ’s Freedom of Information Committee.