Ashcroft v. ACLU: Should Congress Try, Try, and Try Again, or Does the International Problem of Regulating Internet Pornography Require an International Solution?

June 16, 2012

In its decision in Ashcroft v. ACLU, the Supreme Court held that the Attorney General had not convincingly rebutted the contention of plaintiff Internet content providers that filtering software was less restrictive and just as effective as the legislation Mr. Ashcroft sought to defend. The Supreme Court was correct to uphold the preliminary injunction against the Child Online Protection Act5 (“COPA”), but the Court, by reading the legal issue narrowly, left the American public with the lesser of two evils instead of a genuine solution. While the holding is correct in a strictly legal sense, the decision does very little to protect either children or the First Amendment.
This Recent Development traces Congress’ reaction to Internet pornography, using Ashcroft v. ACLU as a case study to illustrate the pattern Congress traditionally follows: tailoring subsequent legislation to the specifications of Supreme Court decisions. This Recent Development argues that following Congress’ pattern in this case will only lead to further litigation because filters, the solution proposed in Ashcroft, along with any national solution, will have a negative impact on free speech rights. This Recent Development concludes that in order to protect both children and the First Amendment, the Internet pornography industry must be treated as just that: an international industry. By urging the Internet pornography industry to accept “best practice guidelines,” the United States government will be protecting children and the guarantees of the First Amendment.