Jacob A. Sosnay


VOL. XXIII • Winter 2005 • NO. 2 (table of contents)

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23 John Marshall J. of Comp. & Info. Law 453


As with most innovations that have world-altering capabilities, the Internet is not without its very own dark side. This Internet's ugly side represented by are the thousands of Web sites devoted to the procurement and dissemination of pornographic material. Although, undoubtedly, in a free society, people are entitled to have access to such material if they so desire it is also generally accepted there is not only a great need, but an uncompromisable duty to protect minors from, and prevent access to, this potentially harmful imagery.

This Comment discusses the several recent attempts made by Congress to regulate the accessibility of pornography to minors via the Internet, specifically the Communications Decency Act ("CDA"), the Child Online Protection Act ("COPA") and the Child Internet Protection Act ("CIPA"). The author discusses the background and reasoning of the cases dealing with CIPA, the CDA and COPA respectively. The only of the above mentioned Acts that Congress has been successful in enacting withstanding scrutiny under the First Amendment of the Constitution is CIPA. The analysis that follows reveals that the Supreme Court has left little, if any, room to manoeuvre with respect to Congress' ability to regulate minors' access to pornography via the Internet. Because only COPA's definitions satisfied the stringent requirements of the First Amendment, the only remaining Constitutional conundrum for Congress to overcome is implementing a system that is the "least restrictive means" available, capable of achieving Congress' stated goal in enacting COPA, this Comment suggests two alternatives to COPA's age verification requirement that would be both capable of surviving strict scrutiny under the First Amendment as well as an effective means of protecting minors from the harmful effects of exposure to pornography.

The two suggested alternatives, inspired by recent rules enacted prohibiting telemarketers from soliciting consumers telephonically, provided an individual consumer has affirmatively decided to be permanently removed from the telemarketers' list, propose the creation of a similar “opt-out” system enabling access to Web sites that are deemed to fall under the purview of the controlling statute. Specifically the two alternatives suggested are a National Anti-Porn Internet Protocol Registry or a National Anti-Porn Cookie. Either of these suggestions is capable of withstanding strict scrutiny under the First Amendment while putting the onus on individual Internet users to determine for themselves whether they want to be able to access sexually explicit content available via the Internet.

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