Stanford Center for Internet and Society

Author: Alex Harris

The Fourth Circuit upheld the conviction of a man who downloaded, among other content, graphic illustrations of fictional minors engaged in sexual acts, and text emails describing fictional minors engaged in sexual acts. Federal law prohibits receiving obscene depictions of “a minor engaging in sexually explicit conduct.” 18 U.S.C. § 1466A(a). The court held the statute constitutional on its face, and as applied to downloading materials from the Internet. Receiving content via the Internet, the court said, constitutes trafficking in commerce. It is therefore unlike mere possession of obscenity in one’s home, as is protected by the First Amendment and Stanley v. Georgia. Further, the court held that text and drawings can be obscene and prohibited without violating the First Amendment.

The Third Circuit once again struck down the Child Online Protection Act (COPA), holding that since the statute was not narrowly tailored to its purpose nor the least restrictive means to achieve it, COPA failed strict scrutiny. Additionally, the court determined that COPA was void for vagueness and for overbreadth. COPA was passed in response to Reno v. ACLU, 521 U.S. 844 (1997), which held that the anti-obscenity provisions of the Communications Decency Act violated the First Amendment. COPA has been before the Supreme Court twice now. In prior cases, courts passed on the question whether to grant a temporary injunction against enforcing the law. Now, the district court has conducted its fact-finding and made its injunction permanent. In this case, the Court of Appeals affirmed the district court’s judgments.