Still, What's So Compelling? The Supreme Court's Continued Application of the Ginsberg Analysis and Its Effect on the Attempted Regulation of Internet Pornography in Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004)
This Note will begin with an examination of the circumstances leading to the Supreme Court's decision, discussing both the case history of sex speech as well as the legislative backdrop to the creation of COPA. Next, section III.A will demonstrate how the majority opinion of the Supreme Court narrowed the protected class originally intended by Congress. Section III.B will explain how the majority opinion's arguments touting filtering software as a more effective and less restrictive means fail when applied to the intended broader class. Section III.C will argue that these findings are directly related to the Supreme Court's implicit reliance on Ginsberg v. New York; that the Supreme Court should abandon Ginsberg, which allows a rational relation test to validate the first prong of a strict scrutiny analysis; and that the Supreme Court should oblige empirical evidence relating to the need for such legislation (i.e., relating to the compelling interest) from Congress. Only then will the (un)constitutionality of such an act be arguable. While in sections III.A and III.B I disagree with the Court's finding of a more effective, less restrictive means, the concluding argument of this Note is that if empirical evidence of the harm caused to minor children by sex speech were presented to the Court (via legislative findings), then the Court would be better suited to discuss the existence of a compelling interest and the constitutionality of a proposed remedy.
Michael J. Kuhn,
Still, What's So Compelling? The Supreme Court's Continued Application of the Ginsberg Analysis and Its Effect on the Attempted Regulation of Internet Pornography in Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004),
84 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol84/iss4/7