FALL 2010
Course No.: 9200-710 (& 810)-001
Course ID:  85723 & 85725
Time: M, W 4:45-6:15 p.m.
Room TBD
Professor Jay Dratler, Jr.
Across from Room 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2010  Jay Dratler, Jr.  
For permission, see CMI.

Notes and Questions on Ashcroft II

1.  The opinions in Ashcroft II illustrate beautifully the spectrum of attitudes on the Supreme Court toward freedom of speech, one of our nation's most fundamental values.  The approaches can be ranked from the most protective to the least protective of speech, as follows:
    (a)  Congress may not make any law restricting speech, period.  This was Justice Black's view, as cited in Justice Breyer's dissent.  Since Justice Black's time, however, the Court has never taken such an absolute approach.
    (b)  Congressional regulation of the content of speech requires strict scrutiny, and the government must prove that its regulation is the least restrictive alternative for serving a compelling governmental interest.  This is the majority's and Justice Stevens' view; it coheres with currently prevailing First-Amendment doctrine.
    (c)  Congressional regulation of the content of speech requires strict scrutiny and least-restrictive-alternative analysis, but the courts must apply that analysis practically and balance the regulation's restrictive effect on speech against the relative effectiveness of the regulation and its alternatives.  In particular, Congress may regulate speech to serve a compelling interest if the regulation has only a "minor" effect on protected speech and is (substantially?) more effective than alternatives.  This balancing test appears to be Justice Breyer's view.
    (d)  Congress may regulate commercial pornography without regard to strict scrutiny.  This appears to be Justice Scalia's view.
Which of these four approaches is most appropriate generally for achieving our nation's fundamental goal of robust and free communication?  Does/should the type of speech matter?

2.  Should the Court's approach to regulating the content of speech depend upon whether the government is attempting to regulate "political" speech or commercial pornography, as Justice Scalia suggests?  If so, will the distinction always be clear?  Will it be clear if the definition of "obscene" differs from place to place, as Miller's "community standards" require?  Should the protection of speech depend upon the ability of a majority of Justices to "know [commercial pornography] when they see it," or would such an approach lead to a slippery slope for protection of speech in general?

3.  What about Justice Breyer's approach?  Is it reasonable to balance the restrictive effect of alternatives against their effectiveness in serving an asserted compelling interest?  Wouldn't that approach allow even a substantial restrictive effect on speech as long as the government's means were substantially more effective than alternatives and the interest asserted were sufficiently compelling?  Is that an appropriate way to preserve unpopular speech against the "chilling effect" of criminal sanctions?  If not, should we trust a majority of Justices to decide what restrictive effect on speech is, in Justice Breyer's word, "minor"?  Isn't that a slippery slope of a different kind?

4.  Justice Stevens emphasizes COPA's severe criminal sanctions, including imprisonment, and their chilling effect.  He mentions but does not reveal his own views as a parent and grandparent, and he apparently subordinates them to his duty to protect speech under the First Amendment.  However much we may want to punish commercial pornographers, will doing so be worth the cost of chilling speech near the fuzzy line between the obscene and the protected? Doesn't the "community standards" approach exacerbate the problem of chilling effect by making the standard for obscenity even more uncertain?

5.  As a practical matter, will criminal sanctions, however severe, really stamp out commercial pornography on the Internet?  Justice Breyer discounts the fact that 40% of commercial pornography comes from abroad; he seems to feel that stamping out the 60% of domestic origin would justify the incidental restrictive effect on protected speech.

Are federal prosecutors really going to spend substantial time and resources investigating and prosecuting commercial pornographers in the Age of Terror?  Won't prosecutions, if they occur at all, inevitably be limited to a few sensational cases designed to make an example of some in order to deter others?  If so, then how will those "exemplary" trials affect speakers whose speech is near the fuzzy borderline between the obscene and the protected (at least for adults)? Won't they chill that sort of speech just as much as they will deter commercial pornography?  Is there any easy way to escape from this dilemma?  Are severe criminal sanctions an effective and appropriate response to the "plague" of Internet pornography?

6.  Justice Breyer says that the statute has only a "minor" chilling effect on speech because anyone concerned about its sanctions can avoid them by using any of the various forms of "child identification" technology that the statute prescribes as an affirmative defense.  Justice Stevens says this defense does not avoid the statute's chilling effect because any person accused of commercial pornography as defined must suffer a criminal charge and come to court to assert the defense.  The risk of public opprobrium and the expense of a criminal defense, he seems to say, will chill others' speech (and perhaps the defendant's at later times) even if the defendant ultimately wins.  Who is right?

7.   Is the "child identification" defense sufficiently robust to provide real protection for those who purvey material lawful for adults but unlawful for children?  When does it apply?  Must the identification technology actually work, or is it enough that the defendant make a reasonable attempt at it?  a good-faith attempt?  What if the technology works with some but not all viewers' computers?  What if changes in technology make it ineffective?  What if they make it ineffective as to some but not all viewers' computers?  Can you think of other alternatives for effective government regulation?

8.  Problem.  Suppose Congress passed a statute criminalizing all Internet dissemination of material that is entirely unprotected (i.e., obscene for adults as well as for children) and requiring material that is unprotected (obscene) for children but not for adults to contain a brief warning notice prescribed in the statute.  For example, the warning might be as simple as the words "NOT FOR CHILDREN," in capital letters, inserted in each page of a Website or its metatags, or in the subject line for e-mails.  (As we will discuss later, "metatags" are "hidden" code in Websites that computers can see but ordinary users do not.)   If so required, the warning could be used by blocking and screening software to avoid exposure to content containing it.  Suppose further that statute imposed criminal sanctions on anyone omitting this warning when and as required.

Would such a statute pass constitutional muster?  Consider each of the four approaches in Point 1 of these Notes and work through an analysis.  How would this hypothetical statute fare under each of the four approaches?  Would any of the approaches, or any of the Ashcroft II Justices, reach a different result for this hypothetical statute than for COPA?  Assume that our hypothetical statute, like COPA, uses the three-part test of Miller as the basis for defining what is obscene, with separate definitions for children and adults.

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