Content-Type: text/html

Running Head: Defining the Concept of "Harmful to Minors" in the Age of the Internet		         
Defining the Concept of "Harmful to Minors" in the Age of the Internet

ABSTRACT 
For over 150 years, the United States government has emphasized the importance of protecting children from harm, especially in the area of sexually explicit material.  However, society's definition of pornography and determinants of harm have changed over time.  Moreover, the emergence of the Internet has posed a challenge for government regulators. This paper proposes solutions to ensure that the government's interest in protecting minors from Internet content is carried out in the least restrictive manner.


TABLE OF CONTENTS


I.	INTRODUCTION
II.	DEFINING TERMS: PORNOGRAPHY, OBSCENITY AND INDECENCY
III.	CHILDREN AND THE CONCEPT OF HARM
IV.	A BRIEF OVERVIEW OF PORNOGRAPHY RESEARCH
A. 	Pornography Commissions
B. 	Scholars' Research
C. 	Meta-Analysis Study
V.	LEGAL ISSUES
A. 	Adult Access v. Protection of Minors
B. 	Judicial and Legislative Attempts in Defining "Harmful" and in Protecting Minors
VI.	DISCUSSION/ANALYSIS/PROPOSALS
A. 	Changing Values
B. 	Ambiguous Decisions
C. 	Two-Pronged Approach
VII.	CONCLUSION

NOTE TO REVIEWERS:  When referring to sources, author did not use ids, infras and supras in footnotes in order to more accurately and efficiently revise paper based on reviewers' comments.  Footnotes in final paper will adhere to Harvard Bluebook style.
I. INTRODUCTION
While visiting a public library to conduct Internet research on the White House, thirteen-year-old Deanna takes a break from her studies to run an online search using her own name.[1]  After selecting a search engine[2] to find web sites containing the word "Deanna," she then types in deanna.com in the Uniform Resource Locator (URL) address bar and, within seconds, she is exposed to a sexually explicit web site.  Although Deanna would have to enter a credit card number to access uncensored and more graphic photographs and videos, she still can visit the guest site "teaser advertisements"[3] and see photos of nude men and women in provocative sexual acts, such as group sex and gay or lesbian sex.  She then can click on links to other sites that contain more samples of sexual encounters.  
In an effort to return to her class research project, Deanna quickly types in whitehouse.com and again stumbles upon a pornography site. She then realizes that instead of typing whitehouse.gov, the official site of the United States White House, she has typed whitehouse.com, a pornography web site.  Deanna fixes her error and resumes her research.
Although Deanna's story is hypothetical, Congress has been concerned about minors like Deanna who either inadvertently or intentionally access sexually explicit web sites on the Internet.   In the late 1990s, Congress made two attempts to protect minors from sexually explicit material on the Internet,[4] believing that exposure to such materials would have an adverse affect on minors, whether they were seven years old or seventeen years old.  However, Deanna's exposure to two pornographic sites at one time would be extremely atypical, as it has been estimated that the proportion of sexually explicit material on the Internet is less than two tenths of one percent.[5]
In addition, the results of social science studies on the effects of pornography are inconclusive.[6]  Nonetheless, in 1968 in Ginsberg v. New York, the Supreme Court stated that the legislature does not need to rely on empirical research when it comes to the government's compelling interest in protecting children.[7]   Yet the Supreme Court and Congress do not clearly outline how "harm" is determined or under what circumstances children need to be protected.  
Society's interest in protecting children from harm is nothing new, but the concept of what is harmful has changed over time.  For example, in the 4th century BC, Socrates was condemned to death for corrupting the youth of Athens.[8]  During the last 150 years, England and the United States have attempted to restrict pornography in an effort to protect both women and children.[9]  Throughout the latter half of the 20th century, American courts have used the concept of "protecting minors from harm" as justification for regulating minors' access to sexually explicit materials,[10] although pornography has no legal definition.[11] 
The purposes of this paper are to explain society's changing view of children, summarize the social science studies that attempted to determine pornography's effect on children and the family, and analyze the competing interests of ensuring adults' access to constitutionally protected online speech while protecting minors from "harmful" speech.  This paper will examine judicial and legislative attempts to protect children from material that has been deemed harmful and then will analyze and propose solutions to ensure that the government's interest in protecting children from harm is carried out in the least restrictive manner.
II.  DEFINING TERMS: PORNOGRAPHY, OBSCENITY AND INDECENCY[12]
When trying to balance adults' access to constitutionally protected speech with the protection of minors, the Supreme Court has recognized that freedom of expression was highly valued by the founding fathers,[13] although it is unlikely that they believed that all speech deserved equal protection.[14]  At the same time, the Court has held that the government has a compelling interest in protecting children from what is considered "harmful" speech, particularly sexually explicit material.[15]  However, the goal of protecting children is complicated by imprecise terms and definitions.  This section will attempt to define pornography, obscenity and indecency, emphasizing the fact that the First Amendment does not protect obscenity.[16] 
Pornography does not seem to have a specific legal definition established through case law.  Black's Law Dictionary defines "pornographic," as "that which is of or pertaining to obscene literature; obscene; licentious."[17]  However, since obscenity is not protected by the First Amendment while non-obscene pornography is protected, Black's definition of  "pornographic" does not parallel either society's, the government's or the courts' use of the term (although it is important to emphasize that no legal meaning has been attached to the term "pornography.")  
For the purposes of this paper, pornography will refer to sexually explicit material, and both terms will be used interchangeably throughout the paper.   A complementary, but more detailed, definition of pornography may be found in the 1999 online edition of Merriam-Webster dictionary: "the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement" and "material (as in books or a photograph) that depicts erotic behavior and is intended to cause sexual excitement."[18] 
From a historical perspective, the definition and concepts of pornography have changed over time.  The term originated from the Greek "pornographios," which means "writing about harlots."[19]   In the 19th century, knees and calves were thought to be erotic,[20] and material that is now labeled "pornography" was plentifully available in classical literature until the late 1800s, particularly in England.[21]  During this time period, men were the only ones who received a classical education, and most "gentlemen" would have agreed with poet Thomas Macaulay's assertion in 1841[22] that no valuable book "should be withheld from the student on account of its impurity."[23] 
While the First Amendment protects non-obscene pornography, it does not protect obscenity,[24] as stated above.  Obscenity has a legal definition, referred to as the Miller test.[25]  For a work to be considered obscene, the following three criteria must be met:  1) "whether 'the average person, applying contemporary community standards,' would find the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value."[26]  
However, a confusing twist in obscenity law revolves around a concept known as the variable obscenity standard.  In Ginsberg v. New York,[27] the Supreme Court noted that what is considered "obscene" as to minors may not be obscene for adults.  Thus, while adults legally could access an online web site featuring explicit sexual stories, photographs and videos, these same materials could be considered obscene for minors.
	Although the definition for obscenity may be difficult to apply in terms of defining community standards for online communities, indecency is even more problematic as there is no specific definition of the term and it seems to be used mainly when referring to the electronic media.  Indecent materials tend to be less graphic and less erotic than obscene materials.  In addition, indecent materials may include nudity and may not necessarily conform with accepted standards of morality.  The "prurient appeal" factor, one part of the Miller obscenity test, is not an essential component of indecency.[28]  The Supreme Court has adopted the indecency standard developed by the Federal Communications Commission (FCC), which stated that "the concept of indecent is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience."[29] 
	In addition to problems with imprecise definitions of pornography, obscenity and indecency, the changing views of the child and of what is considered harmful further add to the confusion surrounding the protection of minors.
III.  CHILDREN AND THE CONCEPT OF HARM
	Over time, the concept of and beliefs about childhood have changed.[30]  In addition, each generation seems to define the concept of what is considered harmful to children differently.  
A.  THE CHANGING VIEW OF THE CHILD
	Society's view of the child not only has been inconsistent, but it has gone back and forth between two extremes: treating the child as innocent vs. treating the child as an adult.  For example, in the 4th century BC, the Greeks believed that they needed to teach children wholesome lessons because the earliest ideas children took in likely would become "indelibly fixed."[31]  In the 16th century AD, historians noted that the worlds of the child and adult were integrated, where children and adults would share the same games and jokes, including jokes about sex and sexuality that would not be allowed in school libraries or in broadcasting's "safe harbor" today.[32]  At one time public executions were a leading form of family entertainment, and people were not worried about exposing children to death, violence or sexuality.[33]  
However, in western bourgeois society, a new view of the child emerged.  In the late 19th century, educators and social reformers stressed both the need to prolong children's innocence as long as possible and the importance of teaching children puritan values, such as self denial.[34]  Catherine Ross, professor of law at George Washington Law School, said, "Today, most observers attribute numerous vulnerabilities to children, including inexperience, lack of education, lack of judgment and mature intelligence."[35]  Ross pointed out that a more negative way to view children's vulnerabilities is to see children as "na‹ve," "foolish" and "irresponsible."[36] 
The changing view of the child affected how adults treated children.  "Only after people began thinking of children as innocents who had to be protected did it occur to them, for example, that children should have their own separate reading matter or that certain artistic classics should be expurgated_especially for children," Ross said.[37]	
  As society's view of the child changed, so, too, did society's definition of material that was considered "harmful" to children.  Whether or not pornography, e.g. sexually explicit material, is harmful to children and adults, however, has been the subject of great controversy, especially with the growth of the Internet.

B.  THE CHANGING VIEW OF HARM
For over two thousand years, the effects of pornography have been debated.  Plato believed that pornography was harmful and therefore would have supported a ban on pornography, while Aristotle argued that pornography was harmless, or at the very least, not influential.[38] In the 20th century, scholars and researchers continue the debate.
However, both Plato and Aristotle shared a common belief that most contemporary commentators ignore:  If certain portrayals can arouse the urge to imitate life, then to some degree all portrayals must possess this same capability, and, therefore, if pornography is treated differently, hopeless confusion would result.[39]   
	In the 19th and 20th centuries, Americans viewed sex, gambling, violence and modes of transportation as vices, particularly for youths.[40]  Some moral crusaders worried about the impact of train stations, movie theaters and automobiles on young people.[41]  Other crusaders urged the state to protect children against dime novels, classic books and plays that might "arouse in young and inexperienced minds lewd and libidinous thoughts," information on contraceptives and on crimes, and confectionery stores that sell chewing gum with prizes or that run lotteries.[42]  Some late 19th century reformers even began counting the instances of violence in novels.[43]
	Just as the train stations and automobiles of the past worried some groups in society, today's information superhighway, as the Internet is called, seems to elicit concern, and legislators have been particularly worried about minors accessing pornography on the Internet.  In a two-year period, Congress attempted to pass two laws to restrict minors' access to Internet pornography, with one ruled unconstitutional[44] and the other currently being challenged in a federal court. [45]   However, Solveig Singleton, a graduate of Cornell Law School and director of information studies at the Cato Institute, argued that images can "invoke powerful thoughts, impulses, and feelings in others_(but) there is no reason to view sexual imagery as being any more powerful than any other kind of imagery."[46]   In addition, social science research does not show evidence of a direct causal link between pornography and delinquent or criminal behavior.
IV.  A BRIEF OVERVIEW OF PORNOGRAPHY RESEARCH
	Even though the government states that it has a compelling interest in protecting children from material it deems "harmful," such as pornography,[47] social science studies on the effects of pornography are inconclusive at best and contradictory at worst.  However, between 1970 and 1985, the nature of pornography shifted dramatically, with increases in sado-masochistic themes and in linking sex with violence.[48]  In the past twenty years, researchers and policy makers began focusing more on violence in pornography.  During the same period, the government authorized two commissions to study pornography, with each commission reaching a different conclusion about the effects of pornography.
	In 1970, the United States government released the report compiled by the Commission on Pornography and Obscenity.  The Report did not define obscenity and recommended that legislative and administrative bodies not attempt to define obscenity, according to Walter Kendrick, professor of English at Fordham University.[49]  The majority report, subscribed to by twelve of the eighteen commissioners, stated that "empirical research designed to clarify the (pornography) question has found no significant role in the causation of delinquent or criminal behavior among youth or adults."[50]  More radically, however, the Commission recommended that "federal, state, and local legislation prohibiting the sale, exhibition, or distribution of sexual materials to consenting adults be repealed."[51]
Sixteen years later, in 1986, the Meese Commission issued the Final Report of the Attorney General's Commission on Pornography,[52] commonly referred to as the Meese Report.  Although unable to define pornography, the Meese Report stated that pornography had changed radically since 1970 and now included violence against women and the violation of children.[53]  According to Kendrick, the Meese Commission was unable to find any definite connection between pornography and anti-social behavior, but it nonetheless stated that the connection was automatic and inescapable and urged immediate government intervention at all levels.[54]
Proving the harmful effects of pornography has been difficult due to ethical and methodological problems, however.[55]  For instance, researchers could not ethically conduct experiments exposing children to pornography, just as researchers could not intentionally expose children to cigarette smoke to study the effects of second hand smoke.[56] 
Other problems involve the experimental method itself.  First, it is difficult to determine a cause and effect relationship[57] between exposure to pornography and anti-social or criminal behavior.  For example, an individual who is exposed to pornography could commit a sex crime, but the cause of the behavior could be something entirely unrelated to the pornography, such as a problem childhood, a failed relationship or a lost job.  
Another problem involves the location of the experiment.  Since lab experiments are conducted in an artificial setting, it is difficult to generalize from specific studies done under controlled conditions to the population as a whole[58] because subjects may not behave the same in the real world as they do in the laboratory.  
Third, some research questions don't lend themselves to the experimental approach.  For example, questions about the collective behavior of society would fall into this category.[59]  
Fourth, the existence of a correlational relationship[60] between two variables does not mean that the relationship is causal.[61]  For example, while a majority of serial killers may have been exposed to pornography, that does not mean that pornography caused the serial killers' behavior.  It is just as likely that other variables, such as character traits or environmental factors, contributed to the behavior.  To view the example another way, since a very small percentage of people commit mass murders and a much larger percentage have been exposed to pornography, it is quite plausible that the majority of people who have been exposed to pornography do not commit serial murders.   
In summary, social sciences studies have yielded ambiguous results on the effects of pornography on adults. While research has indicated that a relationship exists between the frequent use of pornography and problematic sexual disorders for some individuals, it is difficult to establish whether pornography plays a causal role or rather is symptomatic of the disorder itself.[62]  In some cases, the degree of arousal is not highly correlated, or related, to the degree of explicitness.  In fact, sometimes individuals are more aroused by a less sexually explicit story.[63]   
One overriding problem with pornography studies in general is that pornography is a scientifically imprecise and highly value laden term.[64]  For example, not everyone would agree that the five classes of pornography identified in the 1986 Meese Commission's Report were all pornographic.[65]  The categories were:  1) sexually violent materials, such as rape; 2) nonviolent materials depicting degradation, domination, subordination, or humiliation; 3) nonviolent and nondegrading materials depicting a couple having oral sex or vaginal intercourse; 4) nudity showing the naked human body with no obvious sexual behavior or intent; 5) child pornography.[66]  Moreover, the effects of, and reactions to, sexually explicit material can depend on tone, artistic worth and intent, and cultural context.[67]  For example, in some cultures, people do not consider the female breasts as either erotic or inappropriate for public display.[68] 
	Despite problems with the disagreement about the definition of pornography and with the experimental method, well-regarded studies have shown that prolonged consumption of pornography can alter values, but, depending on one's values, that finding is not necessarily negative.[69]   In 1988, Zillmann and Bryant found prolonged exposure to common, non-violent pornography[70] can alter perceptions of and dispositions toward sexuality and relationships.[71]  The researchers found a diminished desire for procreation and an increased tolerance of promiscuity.[72] 
In 1995, Allen, D'Alessio and Brezgel conducted another type of study, known as a meta-analysis.[73]   In their analysis summarizing the effects of pornography, the researchers found that exposure to nudity diminished subsequent aggressive behavior, whereas exposure to nonviolent and violent pornography increased subsequent aggressive behavior.[74]  These authors also expressed concerns about the limitations of a laboratory experiment.[75]  While the results indicated that there "probably exists some connection between exposure to pornography and subsequent behavioral aggression," Allen, D'Alessio and Brezgel stated that they still could not answer a key question:  "Under what conditions or moderating features does the observed effect change?"[76]
V.  LEGAL ISSUES
	Despite the inconclusive results in pornography research, Congress and the Supreme Court have assumed that children needed to be protected from sexually explicit material, also referred to as pornography in this paper.[77]  In addition, the Court has upheld the constitutionality of a variable obscenity standard, which allows material to be deemed obscene for minors when it is not obscene for adults.[78]  However, there is no clear definition in case law of what exactly is "obscene as to minors." 
In attempting to protect children from pornography on the Internet, the legislature passed the Communications Decency Act (CDA) in 1996 and the Child Online Protection Act (COPA) in 1998. However, the Supreme Court struck down two sections of the CDA as unconstitutional, and the American Civil Liberties and other groups have challenged the COPA, thus halting its enforcement.[79]  This section traces attempt by Congress and the Supreme Court to protect minors during the evolution of obscenity and indecency law in the United States.
A. THE ORIGIN OF OBSCENITY LAW
	The United States inherited its original definition of obscenity from England's Hicklin test, which was imported in the late 19th century.[80]  Material was deemed obscene if "the tendency of the matter charged as obscenity [was] to deprave and corrupt those whose minds are open to such immoral influences" and who might come into contact with obscene materials.[81]  The Hicklin test, in essence, defined obscenity based upon the effect of isolated passages in printed material on the most vulnerable members of society.[82]
	In 1957, the United States Supreme Court officially rejected the Hicklin test[83] and for the first time, stated that obscenity was outside the protection of the First Amendment.[84]  The Court noted that lower courts in the United States had rejected the Hicklin test earlier and substituted a different test:  "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest."[85]  The Supreme Court was, in effect, criticizing the Hicklin test's emphasis on the effect of isolated passages on the most susceptible persons in society.[86]  In Roth, the Supreme Court upheld the criminal conviction of two men, one under New York law for mailing obscene circulars and another under California law for running a mail-order business that distributed obscene materials.[87]  Thus, the Court made clear in Roth that the First Amendment did not protect obscenity and that producers and distributors could be prosecuted under federal or state criminal statutes.
Also in 1957, the Supreme Court first confronted the problem of determining and regulating obscenity as it applied to minors.  In Butler v. Michigan, the Court invalidated a Michigan statute that had penalized making materials available to the public that might have a "potentially deleterious influence upon youth."[88]  The Court wrote, "We have before us legislation not reasonably restricted to the evil with which it is said to deal.  The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children."[89]
In spite of, or perhaps due to, the Supreme Court decisions handed down in Roth and Butler in 1957, uncertainty about obscenity continued to plague the courts until 1973.[90]  In 1959, the Supreme Court had to deal with the corollary to the Butler holding:  Would uncertainty about what is "fit for children" lead to the suppression of sexually explicit material because bookstore owners would be afraid of the consequences of erroneously classifying material?[91]  In Smith v. California, the Court overturned a bookstore owner's obscenity conviction based on a state ordinance[92] and ruled that all First Amendment regulation required "scienter"[93] or knowledge that the material being sold was obscene.
Eleven years later, in 1968, the Supreme Court upheld the conviction of a Long Island luncheonette owner who sold two "girlie" magazines to a sixteen-year-old boy on two separate dates.[94]  The Court upheld a New York Court of Appeals ruling that had upheld the New York legislature's power to use the variable obscenity standard,[95] thus supporting the concept that what is obscene for minors may not be obscene for adults.  New York Penal Code Section 484-h(I) defined "harmful to minors" as "that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it: (i) predominantly appeals to the prurient, shameful or morbid interest of minors, and (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) is utterly without redeeming social importance for minors."[96]  
However, neither the Supreme Court nor the sources it cited seemed to define or offer a test for variable obscenity.  In addition, no guidelines have been offered to help the future courts determine what is meant by terms such as "shameful or morbid interests" or what material would be "utterly without redeeming social importance for minors."  
Another example of imprecision involves the New York Court of Appeals holding, which stated, "Material which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children.  In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined.  Because of the State's exigent interest in preventing distribution to children of objectionable material, it can exercise its power to protect the health, safety, welfare and morals of its community by barring the distribution to children of books recognized to be suitable for adults."[97]
In another section of the Ginsberg opinion, the Supreme Court cited a 1960 law review article on variable obscenity, which stated, "Variable obscenity_furnishes a useful analytical tool for dealing with the problem of denying adolescents access to material aimed at a primary audience of sexually mature adults.  For variable obscenity focuses attention upon the make-up of primary and peripheral audiences in varying circumstances, and provides a reasonably satisfactory means for delineating the obscene in each circumstance."[98]  
In concurring in the result in Ginsberg, Justice Potter Stewart wrote, "_a child-like someone in a captive audience-is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.  It is only upon such a premise, I should suppose, that a state may deprive children of other rights-the right to marry, for example, or the right to vote-deprivations that would be constitutionally intolerable for adults."[99]
However, in his dissent in Ginsberg, Justice Abe Fortas stated that while he did not disagree with the concept of a variable obscenity standard, the Court needed to define the term in order to assess the principle.[100]  "We must know the extent to which literature or pictures may be less offensive than Roth requires in order to be 'obscene' for purposes of a statute confined to youth," he wrote.[101]
Fortas pointed out that the Supreme Court avoided facing the issue of whether the two magazines that Ginsberg sold to the minor were "obscene" when viewed by a sixteen-year-old, but not "obscene" when viewed by a seventeen-year-old.[102]   Fortas also said that the Court even acknowledged that other magazines, indistinguishable in content and offensiveness from the two that Ginsberg sold to the sixteen-year-old boy, would not considered obscene.[103] 
Finally, a literal interpretation of one part of the Ginsberg opinion would lead the reader to believe that the government's interest in protecting minors can, in fact, supersede the parents' interest[104] in raising their children as they see fit.  Besides upholding the variable obscenity standard, the Supreme Court, in a single statement, also said that the state has "an independent interest in the well-being of its youth."[105]  However, the Court indicated that parents could not be prevented from purchasing sexually explicit material and sharing such material with their children,[106] thus seemingly contradicting its point about the state's independent interest.
Just five years after Ginsberg, the Supreme Court in 1973 established a new three-part obscenity test.  In Miller v. California,[107] a man was convicted under California state law for conducting a mass mailing of advertisements for books on sexual intercourse and the history of pornography.  The Supreme Court fine-tuned its earlier definition of obscenity[108] and emphasized that all three parts of the new obscenity test must be met for a work to be considered obscene:  1) "whether 'the average person, applying contemporary community standards,' would find the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value."[109]  By adopting the Miller standard, the Court rejected the previous wording it had established in 1966 in Memoirs v. Massachusetts, where the third part of the obscenity test read "utterly without redeeming social value."[110] The Miller test remains the current standard of obscenity, and following the 1973 Miller decision, courts have held that state statutes with "obscene as to minors" standards are permissible.[111]
B.  THE PROTECTION OF MINORS FOLLOWING MILLER
Although the Supreme Court repeatedly has stated a concern for protecting minors from harmful material, particularly that which is sexual in nature, the Court also has carefully weighed adults' rights to access constitutionally protected speech.  In 1975, the Court declared unconstitutional a Florida city ordinance that prohibited a drive-in theater from showing nudity because its screen was visible from the street.[112]  The Court wrote,  "The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited.  Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of the context or pervasiveness."[113]  The Court held that the ordinance was too broad as applied to both adults and children and stated that it would deter drive-in theaters from showing movies containing nudity, no matter how innocent or educational.[114]  For example, the ordinance could prohibit movies with bare baby buttocks, nude bodies in war, and nude people where nudity is indigenous to the culture.[115]  In addition, the Court said that the ordinance was content-based since it singled out films containing nudity, "presumably because the lawmakers considered them especially offensive to passersby."[116]
The Supreme Court noted, however, that, "The First Amendment rights of minors are not 'co-extensive with those of adults.'"[117]  In determining whether a minor has the necessary capacity for individual choice, the Court stated that the age of the minor is a significant factor.[118]  On the other hand, the Court said, "Speech that is neither obscene as to youths nor subject to some other legitimate prescription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."[119]
In Bellotti v. Baird, a case dealing with minors' access to abortions, the Supreme Court stated that while a child is not beyond the protection of the Constitution,[120] there are "three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing."[121]  While the Court acknowledged the importance of protecting minors, it is important to point out that Bellotti dealt with abortion, a physical action that would be performed on a minor, rather than a relatively passive action that occurs when a minor is simply exposed to sexually explicit material online.
In 1982, the Supreme Court once again emphasized the government's compelling interest in protecting minors.  In New York v. Ferber, the Court held that " 'safeguarding the physical and psychological well-being of a minor' is 'compelling.'"[122]  The Court also stated, " 'Democracy rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.'"[123]  However, it is important to note that Ferber dealt with child pornography, which could have a much more detrimental effect on minors than exposure to sexually explicit material.
C.  THE PROTECTION OF MINORS IN THE ELECTRONIC AGE
The protection of children continued to be a theme during the last three decades of the twentieth century, and the Supreme Court heard several cases involving the electronic media, including broadcasting, cable and the Internet.  Still, the Court faced the same challenge as it had in the past:  balancing the protection of children with ensuring adults' access to constitutionally protected speech. The Court's new challenge, though, was to evaluate law as it related to mass media that are much different than print and movie theaters.  While obscenity is not protected in any media,[124] indecency, a term usually used when referring to sexually explicit material in the electronic media, is protected speech.  However, speech that is considered indecent for adults still may be obscene for minors, similar to the variable obscenity standard dealing with printed materials in Ginsberg. [125] 
In 1978 in FCC v. Pacifica, the Supreme Court seemed to use an indecency standard developed by the Federal Communications Commission (FCC), which stated that "the concept of indecent is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience."[126]  The Pacifica case resulted from a father's complaint about George Carlin's "Filthy Words" monologue being aired on a New York City radio station in the afternoon.[127]  The Supreme Court, in reversing the U.S. Court of Appeals ruling, upheld the Federal Communications order allowing the regulation of indecent broadcasting.[128]  The Court stated that the intrusiveness of radio broadcasting and children's unsupervised accessibility to radio justified the regulation of indecency in the broadcast media.[129]  In essence, the Court supported the FCC's intentions to protect children from indecent content by allowing the FCC to mandate restrictions on times when sexually explicit material could be aired.
Eleven years later, in a 1989 "dial-a-porn" case,[130] the Supreme Court held that while obscene commercial phone messages are not protected speech, indecent messages are protected speech.[131]  In 1988, Congress had amended Section 223(b) of the Communications Act of 1934 and imposed a ban on indecent as well as obscene interstate commercial telephone messages.[132]  The Court relied on precedence and stated that the amendment was not narrowly drawn and that the government could regulate the content of speech only if it chooses the least restrictive means to further that interest.[133]  In addition, the Court contrasted Sable with Pacifica, noting that the Pacifica opinion relied on broadcasting's "unique" attributes of pervasiveness, intrusiveness into the home and accessibility to children.[134]  In Sable, the Court stated that there is no " 'captive audience' problem" and the telephone medium, unlike broadcasting, "requires the listener to take affirmative steps to receive the communication."[135]  Although the Supreme Court decided Sable several years before public Internet access became widespread, the rationale applied to telephone usage in Sable also can be applied to Internet access, as will be discussed following the Denver cable case.
Prior to dealing with the Internet, the Supreme Court in 1996 once again faced the issue of balancing adults' access to constitutionally protected speech with the protection of minors, this time in the cable medium.  In Denver Area Education Telecommunications Consortium v. FCC, the Court found that the Cable Television Consumer Protection and Competition Act of 1992, in part, violated First Amendment rights.[136]  First, however, the Supreme Court upheld a provision of the 1992 Cable Act that allowed cable operators to prohibit sexual or "patently offensive" programming, as determined by contemporary community standards.[137]   Next, the Court declared that two other sections violated the First Amendment:[138] Section 10 (b) would have allowed cable operators to segregate "patently offensive" material onto separate channels and block access until viewers requested access in writing,[139] while section 10(c) would have permitted cable operators to prohibit such programming on public access or PEG channels, e.g. channels the government requires that cable operators set aside for public, educational or governmental purposes.[140]  The Court said that the "segregate and block" restrictions on speech were not narrowly tailored and were overly restrictive.[141] 
Nonetheless, the Court wrote that "the provision before us comes accompanied with an extremely important justification, one that this Court has often found compelling-the need to protect children from exposure to patently offensive sex-related material."[142]  However, the Court did not see how, on the one hand, blocking alone could adequately protect children from exposure to regular sex-dedicated channels, while on the other hand, blocking could not adequately protect children from leased sex-dedicated channels.[143] 	
The Court conceded that outside of an absolute ban[144] on " 'patently offensive' sex-related material,"[145] there is no way to ensure "certain protection against assault by a determined child."[146]  In other words, the Court acknowledged that enterprising children could find a way to access sexually explicit material if they wanted to do so.  The Court also stated that it generally has not let this fact alone justify " 'reducing the adult population_to_only what is fit for children.'"[147]
As the above cases have demonstrated, the Supreme Court has taken the nature of the medium into account when making decisions about the protection of minors.  While obscenity is not protected in any medium, pornographic material that is sexually explicit but not obscene, including indecency in the broadcast media.  In broadcasting, indecent programming may be channeled to times when children are less likely to be in the audience. [148]  However, what is obscene for minors may simply be indecent for adults, and neither term has been defined clearly.  In the last few years of the twentieth century, the Supreme Court faced a new challenge in trying to determine how to handle the protection of children in the age of the Internet.
1.  The Communications Decency Act
In 1997, the United States Supreme Court, in Reno v. ACLU,[149] struck down two sections of the Communications Decency Act (CDA), which was Congress' first attempt at legislating online content.  On direct appeal to the Supreme Court, as specified in the statute, the Court struck down Sections 223(a) and 223(d) of the Communications Decency Act.  Section 223(a) would have criminally prohibited the "knowing" transmission, by means of telecommunications devices, of "obscene or indecent" communications to anyone under the age of 18.[150]  Section 223(d) would have criminally prohibited the "knowing" sending or displaying to anyone under the age of 18 communications that, in context, "depict or describe, in terms 'patently offensive' as measured by contemporary community standards, sexual or excretory activities or organs."[151]  Violators of either provision, including parents, would face penalties, including a fine and/or a prison term of up to two years, for each violation.[152]  In addition, the statute covered both commercial and non-commercial material.[153]
The Court held that Sections 223(a) and 223(d) of the CDA were unconstitutionally overbroad.[154]  The Court stated that the CDA was vague since it failed to distinguish "indecent" speech from "obscene" speech and that it ignored the second prong of the Miller test for obscenity,[155] which specifies that the proscribed material be specifically defined by state law.[156]  
The CDA also contained two defenses.  First, those taking "good faith, reasonable, effective, and appropriate actions" to restrict minors' access to prohibited communications, would have been protected.[157]  Second, those restricting access by requiring proof of age, would have been protected.[158]   However, despite the defenses, the Supreme Court said that the statute was problematic because it was vague and did not define terms such as "indecent" and "patently offensive."[159] 
In Reno, the Supreme Court stated, "It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials.  But that interest does not justify an unnecessary broad suppression of speech addressed to adults.  As we have explained, the Government may not 'reduc[e] the adult population_to only what is fit for children.'"[160] 
In striking down the CDA as being unconstitutional, the Court distinguished the CDA from other statutes and regulations that had been affirmed in the past.  The Court was troubled by the fact that, unlike in Ginsberg v. New York,[161] parents could be held liable under the CDA, that both commercial and non-commercial material was covered under the CDA, and that a minor was defined as a person under the age of 18, rather than 17.[162]  The Ginsberg Court upheld the conviction of a Long Island store and luncheonette owner who sold "girlie" magazines to a sixteen-year-old boy,[163] but did not prohibit parents from buying such magazines for their children.[164] 
The Court also noted that the circumstances covered under the CDA were different from those in FCC v. Pacifica.[165]  First, the CDA prohibited widespread distribution of material.  In Pacifica, the Supreme Court upheld the FCC's power to allow time channeling of indecent programming,[166] but indecent material was not banned.  The Court reasoned that the broadcast media can be regulated, and potentially offensive programs can be shifted to times when children are less likely to be in the audience,[167] because broadcast media are "uniquely pervasive"[168] and "uniquely accessible to children."[169]  Even so, parents were not prohibited from allowing their children to listen to or watch sexually explicit shows. Second, the CDA was punitive, whereas in Pacifica, the Court simply upheld the FCC's authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting.[170]  Third, the CDA attempted to regulate the Internet, a medium that does not have a history of regulation like the broadcast media.[171]  
In analyzing the CDA, the Court emphasized the distinction between obscenity and indecency, as discussed in Sable Communications v. FCC.[172]  In the Sable dial-a-porn case, the Court held that while a statute was constitutional when banning obscene messages, it was unconstitutional when applied to indecent messages.[173]   In addition, as discussed above, the Sable Court stated that there is no " 'captive audience' problem" and the telephone medium is not pervasive, intrusive or accessible to children, as are radio and television.[174]  Finally, the Sable Court noted that the listener must  "take affirmative steps to receive the communication"[175] to access telephone pornography. 
Undaunted by the Supreme Court's ruling, however, the legislature kept working on Internet regulation.  A year after the Reno ruling, Congress enacted the Child Online Protection Act, which was immediately challenged.


2. 	The Child Online Protection Act of 1998 
Despite warnings from the United States Department of Justice concerning constitutionality problems,[176] Congress passed the Child Online Protection Act (COPA) in 1998.  In a letter to Congress prior to the passage of the COPA, the Justice Department wrote that much of the COPA appeared unconstitutional, noting that  "... we would like to bring to your attention certain serious concerns we have about the bill."[177]  Now the Justice Department is in the process of defending the COPA, which it clearly is not predisposed to do.[178]
Immediately after President Bill Clinton signed the COPA into law in October 1998, the American Civil Liberties Union and other groups challenged the Act on constitutional grounds, and a U.S. district judge issued a preliminary injunction that barred the COPA from taking effect.[179]  If the higher courts uphold the COPA, it would prohibit the commercial distribution of material deemed "harmful to minors."[180] 
In the COPA text, the term "harmful to minors" is remarkably similar in wording to the Miller obscenity test[181] and has been defined as:
any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, that such material is designed to appeal to or panders to the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.[182]

Congress had made a diligent attempt to word the Child Online Protection Act (COPA) in such a way that it would pass constitutional muster, unlike the Communications Decency Act (CDA).  Thus, the COPA differs from the CDA in several ways.  First, the Child Online Protection Act would apply to commercial speech only, [183] thus protecting personal e-mail correspondence and non-profit web sites, such as those providing information on health, sexuality and birth control.  Second, the COPA defines minors as those under 17 rather than under 18,[184] which is more consistent with existing law.  Third, the COPA emphasizes that the material would need to be harmful to minors,[185] although the concept of harmful is not clearly defined.  And fourth, the COPA focuses on obscenity, which is unprotected speech,[186] unlike the CDA's focus on indecency,[187] which is protected speech.  Vendors who use the World Wide Web to communicate with minors for commercial reasons concerning material that is "harmful to minors" could be fined or jailed or both.[188]  In addition, the COPA would amend 47 U.S.C. 231 to require web site operators to confirm the identify and age of visitors or else they may face criminal and civil fines and six months in prison for each violation.
Congress based its support of the COPA legislation on five findings.  First, although the custody, care and nurture of the child resides first with the parent, minors' access to the Internet can frustrate parental control.[189]  Second, "the protection of the physical and psychological well being of minors by shielding them from materials that are harmful to them is a compelling government interest."[190]  Third, industry's innovative controls and self-regulation have not provided a national solution to the problem of minors accessing harmful material on the Web.[191]  Fourth, "a prohibition on the distribution of material harmful to minors, combined with legitimate defenses, is currently the most effective and least restrictive means by which to satisfy the compelling government interest."[192]  Fifth, parents, educators and industry must continue to look for ways to protect children from harmful material found on the Internet.[193]
Similar to the rationale used by CDA proponents, COPA supporters also have argued that the COPA is designed to protect children from sexually explicit material on the Internet.  Rep. Michael Oxley (R-Ohio) stated that "COPA employs the constitutionally tested 'harmful to minors' standard recognized and upheld in Federal courts for more than thirty years,"[194] and government lawyers argued that the COPA's  "harmful to minors" standard is more precise than the "indecent" standard of the CDA.[195] 
Representative James Greenwood (R-Penn.), another COPA supporter, compared the COPA to adult movie theaters which have the right to exist, but are not allowed to display pornographic videos on their marquees.[196]  COPA supporters seemed most concerned by the free and sexually explicit "teaser" advertisements[197] that were designed to entice adults into paying to gain full access to sexually oriented sites.[198]   
COPA opponents, on the other hand, viewed the legislation as vague and therefore constitutionally suspect.  Rep. Barney Frank (D-Mass.) said that the COPA is unconstitutional and contains a serious wording problem.  Frank pointed out that a business would commit a crime if a business simply makes the communication available online, even if it is not aimed at minors.[199]  Rep. John Dingell (D-Mich.) questioned who would decide what is "harmful to minors," if the standard should be community based or nationally based, and how a global network can respond to different views of what constitutes harmful materials.[200]  He also expressed concern about the potential "chilling factor" that might cause self-censorship on the Internet.[201]  The American Civil Liberties Union attorneys also said the COPA's mandatory identification or credit card verification systems are expensive and often technically unworkable, and that it is often difficult deciding what is legally suitable for children.[202]
If upheld, the COPA would establish an online variable obscenity standard.  However, in oral arguments presented on November 4, 1999, two federal appellate judges stated that pornography on the Internet and its availability to children may be a problem that Congress cannot solve without violating the First Amendment rights of adults.[203]
VI.  DISCUSSION/ANALYSIS
Although Congress and the Supreme Court have recognized a compelling government interest in protecting minors from harm,[204] the definition of harm still seems quite elusive and subject to change over time as values shift and as cultures merge.  Since the Supreme Court does not require the legislature to possess evidence of harm before enacting legislation to protect children,[205] the question remains, then, as to how material is deemed to be "harmful to minors" and therefore how information providers on the Internet would determine what content would be harmful.  
When courts do not use consistent evidence of harm in making decisions, a danger exists in that "value-laden inquiries will fail to protect the views of those who do not share the moral values of the majority."[206]  For example, articles about contraception and venereal disease that were written by doctors for a lay audience were prosecuted as indecent under the Comstock Act of 1873.[207] 
Unlike a variable obscenity standard, a constant obscenity standard would define materials as either obscene or not obscene, and various tests would be used to draw the line.[208]  However, from a practical standpoint, the Supreme Court has supported the concept of a variable obscenity standard, but has not authored or acknowledged and accepted a clear definition of what is "obscene as to minors."  
Besides having no clear definition of variable obscenity, the Court also does not require proof of harm before upholding law.  For instance, the Court said that it does not need to demand that legislatures provide "scientifically certain criteria of legislation" [209] in order for laws to be upheld. 
The Court has faced additional challenges in trying to protect minors in light of emerging technology, such as FM radio, television and the Internet, while at the same time ensure adults' rights to constitutionally protected speech.  In cases involving print, motion picture and video cassette technology, distributors more easily could screen customers who came to their stores by asking for identification as proof of age.  However, children and adults alike can listen to radio, watch television and access the Internet anonymously in the privacy of their own homes.
The Supreme Court also has emphasized that helping parents supervise their children is a compelling government interest and thus justifies restrictions on First Amendment activities.[210]  But where constitutionally protected speech is restricted, the government must demonstrate that the restriction is narrowly tailored to advance the asserted compelling interest.[211] 
In addition, the Supreme Court has recognized the government's asserted, compelling and independent interest in protecting children, including protecting the well-being of vulnerable youth and shielding them from physical and psychological abuse.  In order to protect children, the Court repeatedly has upheld restrictions on First Amendment freedoms if such restrictions are sufficiently justified by the need to protect the well-being of minors.[212] 
However, the balance between the government's compelling interest in protecting children from harm and the role of the parent in child rearing seems to be ambiguous.  For example, in 1968, the Ginsberg Court stated that the state has "an independent interest in the well-being of its youth" [213] (emphasis added), seeming to indicate that the government could determine what material parents could and could not share with their children. Yet in the same case, the Supreme Court pointed out that parents could buy sexually explicit materials for their children.[214]  Seven years later, in 1975, the Court acknowledged that "[S]peech that is neither obscene as to youths nor subject to some other legitimate prescription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."[215] (Emphasis added). 
In acknowledging the importance of protecting children from harm, the Court has not demanded a heavy burden of proof when trying to link children's exposure to sexually explicit material (or pornography) to perceived ill effects resulting from that exposure.  Instead, the Court has used a rather light burden of proof.[216]  Professor Matthew Spitzer wrote, "The Court has been willing to presume bad effects, or accept rather thin evidence to satisfy the burden."[217]  
Perhaps the dilemma that Congress and the Supreme Court may more readily be solved by a two-pronged effort which restores parental control, thus minimizing government control, and emphasizes the use of social science research in order to ensure that laws, policies and decisions are based on evidence, rather than perception.  
The role of the parent and individual family values can be emphasized by leaving the decision-making about access to print, broadcast, cable and Internet content in the parents' hands.  Then it would be up to parents to determine what material is appropriate for their children, based on individual family values, age, maturity, personality and other factors.  For example, the parents can choose whether or not to use the new and refined filtering technology, such as the V-chip for television and blocking software for the Internet, to determine what material they want their children to access.[218]  
By emphasizing parental control, another major problem with legislation would be averted.  Laws attempting to protect minors from materials deemed harmful, such as pornography, treat seven-years-olds and seventeen-year-olds the same.  However, even if specific laws were written to cover different age groups, individuals mature at different rates, and the problem still would not be resolved.  A combination of parental control and new filtering technologies would emphasize family values over government values and ensure adult access to constitutionally protected speech.   This solution also would help to minimize any concerns about the government taking over the parent's role in child rearing.[219]
Next, Congress and the Supreme Court could begin to rely on social science data before making and upholding law.  By doing so, they would avoid the presumption of harm when none exists.  By examining studies measuring the impact of sexually explicit material on minors, and defining exactly what kinds of materials are harmful to minors.  With more precise definitions, other courts and web site operators would know what materials are considered harmful, and the ultimate goal of protecting children should be closer to being reached.
VII.  CONCLUSION
Without empirical evidence on the effect of pornography on minors or adults, the legislature and courts tend to make value-laden decisions based on majority opinion, which is subject to change over time.  A practical solution would be to emphasize the role of the family in determining what content children should and should not be able to access online and to base legislative and judicial decisions restricting access to sexually explicit materials on actual data, rather than presumptions.  By doing so, individual family values would be preserved and laws would be based on reality, rather than perception.
Clear, analysis of social science data may lead to more precise definitions of harm, which would be useful to other courts and web site operators.
The next time thirteen-year-old Deanna logs onto her home computer, it is unlikely that she'll stumble across a pornography site.  Her family even may have installed Internet filtering software on the computer.  But if by chance, Deanna inadvertently accesses a sexually explicit site, perhaps Congress and the Supreme Court should not jump to the conclusion that she will suffer harm from the exposure, at least not until they have examined data that can either support or refute their assumptions and defined exactly what "harmful" material looks like.



Running Head: Defining the Concept of "Harmful to Minors" in the Age of the Internet







Defining the Concept of "Harmful to Minors" in the Age of the Internet

Copyright _ 1999  by Barbara H. Smith
Ph.D. Student
Mass Communication Law
University of Florida
P.O. Box 118400
Gainesville, Florida  32611

Contact Information:

Barbara H. Smith
12506 NW 234th Street
Alachua, FL  32615
Home Phone: (904) 454-0588
Office Phone: (352) 392-2273
E-mail: bh<a href="/cgi-bin/wa?LOGON=A3%3Dind0101B%26L%3DAEJMC%26E%3Dbase64%26P%3D7195093%26B%3D--%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D%253D_3371115%253D%253D_%26T%3Dtext%252Fplain%3B%2520name%3D%2522smithb.TXT%2522%26N%3Dsmithb.TXT%26attachment%3Dq" >[log in to unmask]</a>


Submitted in April 2000
for review for possible presentation at:

AEJMC Conference
Phoenix, Arizona
August 2000

AV Needs:  Overhead projector for transparencies

[1]  This hypothetical example is used to demonstrate Congress' concerns about a minor inadvertently accessing pornography on the Internet.  See discussion, infra section V.
[2]  A search engine, sometimes called a spider, searches the web and stores all the information it can find, thus facilitating users' access to information by key word searches. See generally, Laura LeMay, TEACH YOURSELF WEB PUBLISHING WITH HTML 4 IN 24 DAYS 624 (Indianapolis: Sams/Macmillan Publishing, 1998).
[3]  Teaser ads are designed to entice adults into paying for full access to sexual web sites, where they then can choose from a menu of sexual encounters, including still photos and videos featuring sexual activity involving heterosexuals, gays, lesbians, group sex, bondage, sado-masochism, bestiality, fetishes, transvestites and transsexuals. In addition, members can enter live chat rooms based on interest areas, as well as read erotic stories.
[4]  See Reno v. ACLU, 521 U.S. 884 (1997), which held that two provisions of Congress's  Telecommunications Act of 1996, 47 U.S.C.  223(a) and 223(d),  known as the Communications Decency Act and which were intended to restrict minors' access to online pornography, were unconstitutional.  See also Child Online Protection Act, H.R. 3783, 105th Cong. (1998), Congress' second attempt to protect children from online pornography. The COPA has been appealed by the government following a preliminary injunction on behalf of those who challenged the act on constitutional grounds.  In an oral argument on November 4, 1999, a pair of federal appellate judges suggested that Internet pornography may be an issue that Congress cannot do anything about without violating the First Amendment rights of adults (See Shannon Duffy, Judges Question Government's Role in Protecting Children on Internet, THE LEGAL INTELLIGENCER, NOV. 5, 1999).
 See Ginsberg v. New York, 390 U.S. 629, 642-43 (1968), stating that the Court does not need to demand that legislatures provide "scientifically certain criteria of legislation," e.g. proof of harm.
[5]  See Shea v. Reno, 930 F. Supp 916, 931 (S.D.N.Y. 1996).
[6]  See discussion, infra Section IV.
[7]  See Ginsberg v. New York, 390 U.S. 629, 642-43 (1968), stating that the Court does not need to demand that legislatures provide "scientifically certain criteria of legislation," e.g. proof of harm.
[8]  See Walter Kendrick, THE SECRET MUSEUM 95 (Berkeley: University of California Press, 1996). The author does not explain how Socrates was corrupting youth, however.
[9]  See generally Walter Kendrick, THE SECRET MUSEUM  (Berkeley: University of California Press, 1996).
[10]  See generally Ginsberg v. New York, 390 U.S. 629 (1968); FCC v. Pacifica, 438 U.S. 726 (1978); Sable v. FCC, 492 U.S. 115 (1989); Denver Area Telecommunications Consortium v. FCC, 518 U.S. 727 (1996); Reno v. ACLU, 521 U.S. 884 (1997), which held that two provisions of the Telecommunications Act of 1996, 47 U.S.C.  223(a) and 223(d),  known as the Communications Decency Act, were unconstitutional; Child Online Protection Act, H.R. 3783, 105th Cong. (1998) (appealed by government following a preliminary injunction on behalf of those opposing the act on constitutional grounds). 
[11]  See discussion, infra Part II.
[12]  For a review of case law establishing criteria for obscenity and indecency, see Legal Issues, infra Part V.
[13]  See U.S. CONST. Amend. I.  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
[14]  See generally Leonard Levy, Emergence of a Free Press (Oxford: Oxford University Press, 1985).
[15]  See generally Ginsberg v. New York, 390 U.S. 629 (1968); FCC v. Pacifica, 438 U.S. 726 (1978); Sable v. FCC, 492 U.S. 115 (1989).
[16]  See Roth v. U.S., 354 U.S. 476 at 485 (1957), which held that obscenity is outside the protection of the First Amendment; see also Miller v. California, 413 U.S. 15 at 24 (1973), which established the three-part obscenity test currently used by the Supreme Court and discussed later in this section. 
[17]  Under the entry for "pornography," Black's refers readers to "pornographic."  See BLACK'S LAW DICTIONARY, which bases the definition of pornographic on the three-part obscenity test established in Miller v. California.  BLACK'S further states, "Material is pornographic or obscene if the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest and if it depicts in a patently offensive way sexual conduct and if the work taken as a whole lacks serious literary, artistic, political or scientific value. Miller v. California, 413 U.S. 15, 24-25." 
[18]  See MERRIAM-WEBSTER ONLINE (Merriam-Webster, Inc., 1999). Available online at http://www.m-w.com.
[19]  See WEBSTER'S COLLEGE DICTIONARY (New York: Random House, 1991).
[20]  See Richard Jackson Harris, The Impact of Sexually Explicit Media, in MEDIA EFFECTS: ADVANCES IN THEORY AND RESEARCH  258 (Jennings Bryant and Dolf Zillmann, eds. 1994).
[21]  See Walter Kendrick, THE SECRET MUSEUM 44-45 (Berkeley: University of California Press, 1996).
[22]  See Walter Kendrick, THE SECRET MUSEUM 45 (Berkeley: University of California Press, 1996).
[23]  See John Clive and Thomas Pinney, Eds. SELECTED WRITINGS:  Thomas Macaulay, Comic Dramatists of the Restoration 81 (Chicago:1972), quoted in Walter Kendrick, THE SECRET MUSEUM 44-45 (Berkeley: University of California Press, 1996).
[24]  See Roth v. U.S., 354 U.S. 476, 485 (1957).
[25]  See Miller v. California, 413 U.S. 15 (1973).
[26]  See Miller  at 24.
[27]  See Ginsberg v. New York, 390 U.S. 629 (1968).
[28]  See FCC v. Pacifica, 438 U.S. 726, 741(1978).
[29]  See Pacifica at 732, referring to 56 FCC 2d. at 98.
[30]  See Walter Kendrick, THE SECRET MUSEUM 35-36 (Berkeley: University of California Press, 1996).
[31]  See Walter Kendrick, THE SECRET MUSEUM 35-36 (Berkeley: University of California Press, 1996).
[32]  See Catherine Ross, Conspectus-- The Association of American Law Schools, Section on Mass Communications Law 1997 Annual Conference Panel: Sex, Violence, Children and the Media: Legal, Historical and Empirical Perspectives, 5 COMM LAW CONSPECTUS 341 at 350 (1997).  Note:  Broadcasters have channeled material considered unsuitable for children to the 10 p.m. to 6 a.m. time slot, thus, in theory, establishing a "safe harbor" for children's viewing from 6 a.m. to 10 p.m.
[33]  See Ross in Conspectus at 350.
[34]  See Ross in Conspectus at 350.
[35]  See Ross in Conspectus at 350.
[36]  See Ross in Conspectus at 350.
[37]  See Ross in Conspectus at 350.
[38]  See Walter Kendrick, THE SECRET MUSEUM 40 (Berkeley: University of California Press, 1996).
[39]  See Walter Kendrick, THE SECRET MUSEUM 40 (Berkeley: University of California Press, 1996).
[40]  See Walter Kendrick, THE SECRET MUSEUM 40 (Berkeley: University of California Press, 1996).
[41]  See Ross in Conspectus at 351.
[42]  See Ross in Conspectus at 351.
[43]  See Walter Kendrick, THE SECRET MUSEUM 40 (Berkeley: University of California Press, 1996).
[44]  See Telecommunications Act of 1996, 47 U.S.C.  223, referred to as the Communications Decency Act (CDA).  In Reno v. ACLU, the Supreme Court struck down two provisions of the CDA as constitutionally overbroad.  
[45]  See Child Online Protection Act, H.R. 3783, 105th Cong. (1998), referred to as the COPA. In addition, the COPA has been challenged and thus has not been implemented. See infra Section V for discussion of the CDA and the COPA.
[46]  See Solveig Singleton, Reviving a First Amendment Absolutism for the Internet, 3 TEX. REV. LAW & POL 279 at 318-19 (1999).
[47]  See New York v. Ferber, 458 U.S. 747, 756-57 (1982), citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 ( 1982); see also Ginsberg v. New York, 390 U.S. 629 (1968).
[48]  See Richard Jackson Harris, The Impact of Sexually Explicit Media, in MEDIA EFFECTS: ADVANCES IN THEORY AND RESEARCH  265 (Jennings Bryant and Dolf Zillmann, eds. 1994).
[49]  See Kendrick at 216.
[50]  See THE REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY 32 (New York: 1970), cited in Kendrick at 215.
[51]  See REPORT at 57, cited in Kendrick at 216.
[52]  See Kendrick at 234.
[53]  See Kendrick at 234.
[54]  See Kendrick at 234.
[55]  See Susan M. Easton, THE PROBLEM OF PORNOGRAPHY 32 (London: Routledge, 1994).
[56]  When conducting an experiment, subjects would be assigned randomly to at least two groups. In this example, the experimental group would be the group of subjects exposed to either the pornographic material or cigarette smoke and the control group would be the group that is exposed to non-pornographic material or a smoke-free environment. The control group would serve as a basis of comparison in any experiment. 
[57]  See Roger D. Wimmer and Joseph R. Dominick, MASS MEDIA RESEARCH: AN INTRODUCTION   186 (Belmont, California: Wadsworth Publishing Company, 1997).
[58]  See Roger D. Wimmer and Joseph R. Dominick, MASS MEDIA RESEARCH: AN INTRODUCTION 186 (Belmont, California: Wadsworth Publishing Company, 1997).
[59]  See Roger D. Wimmer and Joseph R. Dominick, MASS MEDIA RESEARCH: AN INTRODUCTION at 186 (Belmont, California: Wadsworth Publishing Company, 1997). But see also Wimmer and Dominick at 185-86, on the advantages of laboratory experiments, such as the fact that experimentation is the only research method that can indicate causality, and researchers have control over the environment, variables and subjects. In addition, experiments often can be conducted at relatively low cost, and the experimental method aids future researchers in replicating or duplicating the study to test the original study's findings.
[60]  A correlation characterizes the possibility of the existence of a relationship between variables, such as the use of pornography and subsequent aggression, and is measured on a scale of -1 to +1, with -1 indicating a perfect negative correlation (no porn use, no aggression), +1indicating a perfect positive correlation (porn use, aggressive behavior) and 0 indicating no correlation (porn does not have an effect on aggressive behavior).
[61]  See Susan M. Easton, THE PROBLEM OF PORNOGRAPHY 36 (London: Routledge, 1994).
[62]  See Robert W. Kubey, Television Dependence, Diagnosis, and Prevention, With Commentary on Video Games, Pornography, and Media Education, in TUNING IN TO YOUNG VIEWERS 245 (Tannis M. MacBeth, ed. 1996).
[63]  See Richard Jackson Harris, The Impact of Sexually Explicit Media, in MEDIA EFFECTS: ADVANCES IN THEORY AND RESEARCH  251 (Jennings Bryant and Dolf Zillmann, eds. 1994).
[64]  See Richard Jackson Harris, The Impact of Sexually Explicit Media, in MEDIA EFFECTS: ADVANCES IN THEORY AND RESEARCH  249 (Jennings Bryant and Dolf Zillmann, eds. 1994).
[65]  See Richard Jackson Harris, The Impact of Sexually Explicit Media, in MEDIA EFFECTS: ADVANCES IN THEORY AND RESEARCH  248-49 (Jennings Bryant and Dolf Zillmann, eds. 1994).
[66]  See FINAL REPORT OF THE ATTORNEY GENERAL'S COMMISSION ON PORNOGRAPHY at xix-xxi. (Washington, DC: Department of Justice 1986).
[67]  See Harris, in Bryant and Zillmann, MEDIA EFFECTS 256-57.
[68]  See Harris, in Bryant and Zillmann, MEDIA EFFECTS 257.
[69]  See Dolf Zillmann and Jennings Bryant, Effects of Prolonged Consumption of Pornography on Family Values,  9 JOURNAL OF FAMILY ISSUES 518, 541 (1988).
[70]  The commercial pornography tapes were shortened to one hour and contained a narrative format with 12 to 22 minutes of non-sexual action, such as providing transitions between locations or establishing the setting for sexual encounters. Only heterosexual behaviors were included, such as fellatio, cunnilingus, coition and anal intercourse. The programs did not contain sexual violence, bondage, homosexuality or bestiality. See Zillmann and Bryant, Effects of Prolonged Consumption of Pornography on Family Values,  9 JOURNAL OF FAMILY ISSUES at 526 (1988).
[71]  See Zillmann and Bryant, Effects of Prolonged Consumption of Pornography on Family Values,  9 JOURNAL OF FAMILY ISSUES 518, 540 (1988).
[72]  See Zillmann and Bryant, Effects of Prolonged Consumption of Pornography on Family Values,  9 JOURNAL OF FAMILY ISSUES 518, 541 (1988).
[73]  A meta-analysis involves applying statistical procedures to a group of existing studies on pornography in an effort to determine what relationships exist between pornography and other variables, such as attitude or behavior. However, the authors point out that a meta-analysis is not a final objective commentary, but rather provides a method for others to replicate, or duplicate, the study to verify the accuracy and validity of the conclusions. See Mike Allen, Dave D'Alessio, and Keri Brezgel, A Meta-Analysis Summarizing the Effects of Pornography II, 22 HUMAN COMMUNICATION RESEARCH 258, 264-65 (1995).
[74]  See Mike Allen, Dave D'Alessio, and Keri Brezgel, A Meta-Analysis Summarizing the Effects of Pornography II, 22 HUMAN COMMUNICATION RESEARCH 258, 274 (1995).
[75]  See Mike Allen, Dave D'Alessio, and Keri Brezgel, A Meta-Analysis Summarizing the Effects of Pornography II, 22 HUMAN COMMUNICATION RESEARCH 258, 275-76 (1995), listing problems of generalizability (difficulty in generalizing the results to population as a whole), the contextually-sanctioned anonymous nature of association where aggression took place (a lack of accountability in an artificial setting), and a lack of distinction between sexual aggression and general aggression (not being able to isolate a subject's sexually aggressive tendencies from his generally aggressive tendencies).
[76]  See Mike Allen, Dave D'Alessio, and Keri Brezgel, A Meta-Analysis Summarizing the Effects of Pornography II, 22 HUMAN COMMUNICATION RESEARCH 258, 274 (1995).
[77]  The term "pornography," although not a legally-defined term, is being used throughout this section since the legislative and administration branches of government have used the term to refer to sexually explicit material. For example, see infra Part IV on pornography research, including reports from the 1970 and 1986 commissions on pornography. 
[78]  See Ginsberg v. New York, 390 U.S. 629 (1968).
[79]  See discussion of the CDA and the COPA later in Part V, Legal Issues.
[80]  See 3 L.R.-Q.B. 359 (1868).
[81]  See Marion D. Hefner, 'Roast Pigs' and Miller Light: Variable Obscenity in the Nineties, 1996 U. Ill. L. Rev. 843, 846 (1996), citing 3 L.R.-Q.B. 359, 371 (1868).
[82]   See 3 L.R.-Q.B. 359 (1868).
[83]  See Roth v. U.S., 354 U.S. 476 at 484 (1957). Even though prior courts before Roth had used an average person standard, the Supreme Court had never formally rejected the influential Hicklin test before Roth. The Hicklin test was based on Regina v. Hicklin (see 3 Q.B. 360 [1868]), cited in Middleton, Chamberlin and Bunker, THE LAW OF PUBLIC COMMUNICATION 4th ed. 351 (White Plains, NY: Longman, 1997); see also  Kelly M. Doherty, www.obscenity.com: An Analysis of Obscenity and Indecency Regulation on the Internet, 32 AKRON L. REV. 259 (1999). 
[84]  See Roth v. U.S., 354 U.S. 476, 485 (1957).
[85]  See Roth at 489, citing federal and state court decisions that used the "whole" and "prurient interest"  definition, e.g. Walker v. Popenoe, 80 U.S. App. D.C. 129, 149 F.2D 511; Parmalee v. United States, 72 App. D.C. 203, 113 F.2d 729; United States v. Levine, 83 F.2d 156; United States v. Dennett, 39 F.2d 564; Khan v. Feist, Inc., 70 F. Supp. 450, aff'd, 165 F.2d. 188; United States v. One Book Called "Ulysses," 5 F.Supp. 182, aff'd, 72 F.2d. 705; American Civil Liberties Union v. Chicago, 3 Ill. 2d 334, 364 Mo. 1079, 272 S. W. 2d. 283; Adams Theatre Co. v. Keenan, 12 N.J. 267, 96 A.2d. 519; Bantam Books, Inc. v. Melko, 25 N.J. Super. 292, 96 A. 2d 47; Commonwealth v. Gordon, 66 Pa. D. & C. 101, aff'd, sub nom. Commonwealth v. Feigenbaum, 166 Pa. Super. 120, 70 A.2d 389; cf. Roth v. Goldman, 172 F.2d 788, 794-795 (concurrence).
[86]  See Roth at 489.
[87]  See Roth at 480-81.
[88]  See Butler v. Michigan, 352 U.S. 380, 382-83 (1957).
[89]  See Butler v. Michigan, 352 U.S. 380, 383 (1957).
[90]  See Marion Hefner, 'Roast Pigs' and Miller Light: Variable Obscenity in the Nineties, 1996 U. Ill. L. Rev. 843, 852 (1996).
[91]  See Marion Hefner, 'Roast Pigs' and Miller Light: Variable Obscenity in the Nineties, 1996 U. Ill. L. Rev. 843, 848 (1996).
[92]  See Smith v. California,  361 U.S. 147, 155 (1959).
[93]  See Smith v. California, 361 U.S. 147, at 153-54 (1959).  The Court wrote that "the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted_The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to the forms of the printed word which the State could not constitutionally suppress directly.  The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public." 
[94]  See Ginsberg v. U.S., 390 U.S. 629, 631 (1968).
[95]  See Ginsberg at 635.
[96]  See New York Penal Code  484-h, enacted in 1965.  Section 484-h also defines nudity as the showing of either "male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a full opaque covering below the top of the nipple."  Sexual conduct includes "acts of masturbation, homosexuality, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks," or breast if female. 
[97]  See Bookcase, Inc. v. Broderick, 18 N.Y. 2d 71 at 75, 218 N.E. 2d. 668, cited in Ginsberg at 636. 
[98]  See Ginsberg at 636, quoting Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 MINN. L. REV. 5 at 85 (1960).
[99]  See Ginsberg at 649-50.
[100]  See Ginsberg at 673.
[101]  See Ginsberg at 673.
[102]  See Ginsberg at 672.
[103]  See Ginsberg at 672.
[104]  See Ginsberg at 640.
[105]  See Ginsberg at 640.
[106]  See Ginsberg at 639.
[107]  See Miller v. California, 413 U.S. 15 (1973).
[108]  See Memoirs v. Massachusetts, 383 U.S. 413 (1966).
[109]  See Miller  at 24.
[110]  See Memoirs v. Massachusetts, 383 U.S. 413, 418-19 (1966).  The Justices reiterated the definition of obscenity established in Roth, i.e. that the dominant theme of the material taken as a whole appeals to a prurient interest in sex, that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and that the material is utterly without redeeming social value.
[111]  See Marion Hefner, 'Roast Pigs' and Miller Light: Variable Obscenity in the Nineties, 1996 U. Ill. L. Rev. 843, 858 (1996).
[112]  See Erznoznik v. Jacksonville, 422 U.S. 205 (1975).
[113]  See Erznoznik at 213.
[114]  See Erznoznik at 211.
[115]  See Erznoznik at 213.
[116]  See Erznoznik at 208.
[117]  See Erznoznik at 214, citing Tinker v. Des Moines School Dist., 393 U.S. 503, 515 (1969) (Justice Stewart concurring).
[118]  See Erznoznik at 214, citing Rowan v. Post Office Dept., 397 U.S. 741 (Justice Brennan concurring).
[119]  See Erznoznik at 213-14.
[120]  See Bellotti v. Baird, 443 U.S. 622, 633 (1979).
[121]  See Bellotti at 634.
[122]  See New York v. Ferber, 458 U.S. 747, 756-57 (1982), citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 ( 1982).
[123]  See New York v. Ferber, 458 U.S. 747, 757 (1982), citing Prince v. Massachusetts, 321 U.S. 158, 164 (1944).
[124]  See Roth v. U.S., 354 U.S. 476 (1957).
[125]  See Ginsberg v. New York, 390 U.S. 629 (1968),
[126]  See FCC v. Pacifica, 438 U.S. 726  at 732 (1978), referring to 56 FCC 2d, at 98.
[127]  See FCC v. Pacifica, 438 U.S. 726 at 751 (1978).  In his monologue, Carlin was making fun of people's perceptions of words and the arbitrariness with which certain words could be aired, such as bitch, bastard, hell and damn, while seven other specific words could not be aired.  Those seven words were shit, piss, fuck, cunt, cocksucker, motherfucker, and tits, which Carlin repeated throughout his monologue.
[128]  See FCC v. Pacifica, 438 U.S. 726, 751 (1978).  To support its power to regulate indecency, the FCC cited 18 U.S.C.  1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of radio communication."   In addition, the Commission also relied on its power to regulate in the public interest, under 47 U.S.C.  303 (g). See Pacifica at 739.
[129]  See FCC v. Pacifica, 438 U.S. 726, 748-49 (1978).
[130]  See Sable v. FCC, 492 U.S. 115 (1989).
[131]  See Sable  at 117.
[132]  See Sable at 120.
[133]  See Sable at 126.
[134]  See Sable at 127.
[135]  See Sable at 128.
[136]  See Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727 (1996).
[137]  See Denver at 734, upholding 10(a) of the Cable and Television Consumer Protection and Competition Act of 1996, 47 U.S.C. 532 (h).
[138]  See Denver at 755, 766.
[139]  See Denver at 735.  
[140]  See Denver at 734.
[141]  See Denver at 760.
[142]  See Denver  at 743.
[143]  See Denver  at 757.
[144]  See Denver  at 759.
[145]  See Denver  at 732.
[146]  See Denver  at 759.
[147]  See Denver at 759, citing Sable, 492 U.S. at 128 (1989) (quoting Bolger v. Youngs Drug Products Corp.,  463 U.S. 60, 73 [1983]), in turn quoting Butler v. Michigan, 352 U.S. 380, 383 (1957).
[148]  See Pacifica at 738.
[149]  See Reno v. ACLU, 117 S.Ct. 2329 (1997).
[150]  See Telecommunications Act of 1996, 47 U.S.C.  223(a).
[151]  See Telecommunications Act of 1996, 47 U.S.C.  223(d).
[152]  See Telecommunications Act of 1996, 47 U.S.C.  223(a).
[153]  See Telecommunications Act of 1996, 47 U.S.C.  223(e)(2).
[154]  See Reno v. ACLU, 117 S.Ct. 2329, 2344, 2346 (1997).
[155]  See Reno v. ACLU, 117 S.Ct. 2329, 2345 (1997).  The second part of the Miller test, as discussed earlier in this section, defined obscenity in terms of "whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law" (See Miller v. California, 413 U.S. 15, 24 [1973]).
[156]  See Reno v. ACLU, 117 S.Ct. 2329, 2345 (1997).
[157]  See Telecommunications Act of 1996, 47 U.S.C.  223(e)(5).
[158]  See Telecommunications Act of 1996, 47 U.S.C.  223(e)(5)(B).
[159]  See Reno v. ACLU, 117 S.Ct. 2329, 2344 (1997).
[160]  See Reno v. ACLU, 117 S.Ct. 2329, 2346 (1997), quoting Denver Area Telecomm. Consortium v. FCC, 116 S. Ct. 2374, 2393 (1996). See also  Sable, 492 U.S. at 128 (1989) (quoting Bolger v. Youngs Drug Products Corp.,  463 U.S. 60, 73 [1983]), in turn quoting Butler v. Michigan, 352 U.S. 380, 383 (1957).
[161]  See Ginsberg v. New York, 390 U.S. 629, 639 (1968).
[162]  See Reno v. ACLU, 117 S.Ct. 2329, 2341 (1997).
[163]  See Ginsberg v. New York, 390 U.S. 629, 639 (1968).
[164]  See Ginsberg v. New York, 390 U.S. 629, 639 (1968).
[165]  See FCC v. Pacifica, 438 U.S. 726, 751 (1978). 
[166]  See FCC v. Pacifica, 438 U.S. 726, 729-30, 751 (1978). 
[167]  See FCC v. Pacifica, 438 U.S. 726, 729-30, 751 (1978).
[168]  See FCC v. Pacifica, 438 U.S. 726, 748 (1978). 
[169]  See FCC v. Pacifica, 438 U.S. 726, 749 (1978).
[170]  See FCC v. Pacifica, 438 U.S. 726, 738 (1978), referring to 47 U.S.C. 326.
[171]  See Reno v. ACLU, 117 S.Ct. 2329, 2342 (1997).
[172]  See Sable Communications v. FCC, 492 U.S. 115 (1989).
[173]  See Sable Communications v. FCC, 492 U.S. 115, 117 (1989).
[174]  See Sable at 127.
[175]  See Sable at 128.
[176]  See Alan N. Sutin and Ellen Goldberg, High-Tech Agenda in Congress, NEW YORK LAW JOURNAL, Dec. 21, 1998 at S3.  Available online at http://www.lexis.com.
[177]  See Meddling with the Internet: CDA 2 Censorship Act Halted Until February 1, 20 ONLINE NEWSLETTER, No. 1, Jan. 1999 (Thomson Corporation, no pagination available).  Available online at http://www.lexis.com. 
[178]  See Meddling with the Internet: CDA 2 Censorship Act Halted Until February 1, 20 ONLINE NEWSLETTER, No. 1, Jan. 1999 (Thomson Corporation, no pagination available).  Available online at http://www.lexis.com.
[179]  See ACLU v. Reno, 31 F. Supp. 2d 473, 499 (1999).
[180]  See Child Online Protection Act, H.R. 3783, 105th Cong. (1998).
[181]  See Miller v. California, 413 U.S. 15, 24 (1973) and previous discussion of Miller in this section.
[182]  See Child Online Protection Act, 47 U.S.C. 231 (1998). Italics indicate areas significantly differing from Miller  and emphasize phrases specifically dealing with minors. 
[183]  See Child Online Protection Act, 47 U.S.C. 231 (1998).
[184]  See Child Online Protection Act, 47 U.S.C. 231 (1998).
[185]  See Child Online Protection Act, 47 U.S.C. 231 (1998).
[186]  See Roth v. United States,, 354  U.S. 476, 485 (1957).
[187]  See Telecommunications Act of 1996, 47 U.S.C.  223(a).
[188]  See Child Online Protection Act, 105 H. Rpt. 775 (Oct. 5, 1998) and 47 U.S.C. 231(a)(1)(1998).
[189]  See H.R. 3783 101(1), 105th Cong. (1998).
[190]  See H.R. 3783 101(2), 105th Cong. (1998).
[191]  See H.R. 3783 101(3), 105th Cong. (1998).
[192]  See H.R. 3783 101(4), 105th Cong. (1998).
[193]  See H.R. 3783 101(5), 105th Cong. (1998).
[194]  See 144 Cong. Rec. H. 9902, 105th Cong. (1998).
[195]  See Pamela Mendels, On-Line Smut Law Heads Into Court, N.Y. TIMES, JAN. 18, 1999, at C-3.
[196]  See 144 Cong. Rec. H. 9902, 105th Cong. (1998).
[197]  Examples of teaser ads can be found at the following adult-oriented, sexually explicit web sites:  http://www.centerfoldgold.com; http://www.ebonyfantasy.com; http://www.hotpink.com; http://www.privategold.com; http://www.realtimevideos.com; http://www.schoolgirls.com; http://www.lesbiansex.com; http://www.boysonly.com; http://www.absolutelymale.com.
[198]  See Pamela Mendels, On-Line Smut Law Heads Into Court, N.Y. TIMES, JAN. 18, 1999, at C-3. 
[199]  See 144 Cong. Rec. H. 9902, 105th Cong. (1998). 
[200]  See 144 Cong. Rec. H. 9902, 105th Cong. (1998).
[201]  See 144 Cong. Rec. H. 9902, 105th Cong. (1998).
[202]  See Pamela Mendels, On-Line Smut Law Heads Into Court, N.Y. TIMES, JAN. 18, 1999, at C-3.
[203]  See Shannon P. Duffy, Judges Question Government's Role in Protecting Children on Internet, THE LEGAL INTELLIGENCER, Nov. 5, 1999, at 1.
[204]  See Ginsberg v. New York, 390 U.S. 629 (1968).
[205]  See Ginsberg v. New York, 390 U.S. 629, 642-43 (1968), stating that the Court does not need to demand that legislatures provide "scientifically certain criteria of legislation," e.g. proof of harm.
[206]  See Solveig Singleton, Reviving a First Amendment Absolutism for the Internet, 3 TEX. REV. LAW & POL 279 at 293 (1999).
[207]  See David M. Rabban, FREE SPEECH IN ITS FORGOTTEN YEARS (1997), cited in Singleton at 293. 
[208]  See Marion Hefner, 'Roast Pigs' and Miller Light: Variable Obscenity in the Nineties, 1996 U. Ill. L. Rev. 843, 853 (1996).
[209]  See Ginsberg at 642-43.
[210]  See Ginsberg at 639, upholding regulation of material that was obscene for minors, but not for adults.
[211]  See Sable at 126.
[212]  See Ferber at 757, Pacifica at 749, Ginsberg at 640.
[213]  See Ginsberg v. New York, 390 U.S. 629, 640 (1968).
[214]  See Ginsberg at 639.
[215]  See Erznoznik at 213-14.
[216]  See Matthew Spitzer, An Introduction to the Law and Economics of the V-Chip, 15 CARDOZO ARTS & ENT LJ 429 (1997).
[217]  See Spitzer 429 (1997).
[218]  The television v-chip allows users to block out certain programs based on type of content, such as nudity, violence or language.  Internet filtering software allows users to block out key words, specific web sites or protocols (such as chat rooms or e-mail), depending on the software package.
[219]  See Ginsberg at 640.