Congress recently attempted to regulate Internet content in two primary areas: (1) prohibiting the transmission of harmful content to minors, and (2) prohibiting the dissemination of child pornography, including computer-altered content.

I. Access to Harmful Content by Minors

A. The Communications Decency Act

Title V of the Telecommunications Act of 1996 (1), commonly known as the Communications Decency Act ("CDA"), contained two constitutionally significant provisions. The first provision prohibited the knowing creation and transmission of material that is "obscene or indecent" to persons under the age of eighteen. (2) The second provision prohibited the knowing dissemination or display of "patently offensive" content to persons under the age of eighteen. (3)

The Supreme Court declared these provisions unconstitutional in Reno v. ACLU ("Reno I"). (4) The Court stated that never "have the vast democratic forums of the Internet been subject to the type of government supervision and regulation [on speech] that has attended the broadcast industry." (5) Additionally, the Court found that the provisions chilled speech in that persons would be less likely to access unobscene content if credit card or other adult-verification procedures were required. (6) Moreover, persons posting such unobscene content would wrongfully be deterred, fearing that their lawful conduct was illegal. (7)

B. The Child Online Protection Act

In response to Reno I, Congress enacted the Child Online Protection Act (8) ("COPA") in 1998. COPA attempted to rectify the constitutional deficiencies of the CDA. COPA prohibited the posting of content that was available and harmful to minors. (9) However, COPA allowed an affirmative defense for persons who restricted access to minors through an age-verification system. (10)

The constitutionality of COPA was challenged in ACLU v. Reno ("Reno II"). (11) The district court preliminarily enjoined the enforcement of COPA. The court held that an age-verification system would likely deter potential users from accessing a Web site and thus affect the content provider's potential economic gain. (12) Additionally, content providers would be disinclined to provide content that might be deemed harmful to minors and would therefore engage in self-censorship. (13) Finally, the court noted certain areas of the Internet are virtually impossible to regulate. (14) In chat rooms, for example, it would be difficult to screen minors from access or edit the content of messages prior to posting. (15)

While the court indicated that the government has a compelling interest to shield minors from harmful content, COPA was not the least restrictive means to effectuate this interest. (16) First, minors can access harmful content through other sources on the Internet, such as foreign Web sites or through the use of legitimately obtained credit cards. (17) Second, available blocking software can also limit access by minors. (18)

II. Using Computers to Create Child Pornography

Congress enacted the Protection of Children Against Sexual Exploitation Act (19) in 1977, which concerned the use of actual children to produce child pornography. The most recent amendment to the Act however, concerned the exploitation of "virtual children."

The Child Pornography Prevention Act of 1996 ("CPPA") (20) prevents the use of computers to produce pornographic material containing images resembling children. The Act criminalizes the production, possession, and dissemination of an image that "appears to be" or "conveys the impression" of child pornography, even when no children were harmed or used in the production of the image. (21)

This Act has been constitutionally challenged three times. In January 1999, United States v. Hilton (22) upheld the constitutionality of the Act. The court determined that the images at issue were "virtually indistinguishable to unsuspecting viewers from unretouched photographs of actual children engaging in identical sexual conduct." (23) The court acknowledged that the language of the Act potentially applied to paintings, drawings, sculptures, and even cartoons. (24) However, limiting the language to "virtually indistinguishable" images, the Act does not threaten legitimate works of artistic value, including sexually themed works. (25) The court also recognized that depictions of adults mistaken for minors could result in criminal penalties. (26) However, the correct remedy for that rare situation would be the overturning of the conviction, not invalidating the statute. (27)

In November, United States v. Acheson (28) upheld the constitutionality of the CPPA despite a similar overbreadth challenge. As in Hilton, the court applied the "virtually indistinguishable" language to define the "appears to be" requirement of the Act. (29) The court attempted to determine the amount of otherwise legitimate adult-oriented content prohibited by the CPPA. (30) First, the court recognized that very little content with legitimate artistic value would involve depictions of children engaged in sexual activity. (31) Second, the court recognized that the Act requires "knowing" possession of child pornography. (32) Consequently, there would be few, if any, prosecutions where the persons depicted were not clearly under the age of eighteen. (33) Similarly, the court held that the Act was not void for vagueness because the knowing requirement could only be used to prosecute persons who believed they possessed child pornography. (34)

In December 1999, the court in Free Speech Coalition v. Reno (35) declared the CPPA unconstitutional. (36) The court held that "Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children." (37) Specifically, the victimization of children would result only by using the images, not the creation or possession of them. (38) The court said that "to hold otherwise enables the criminalization of foul figments of creative technology that do not involve any human victim in their creation or in their presentation." (39)

The court also found both vagueness and overbreadth problems with the Act. (40) The Act was impermissibly vague because it: (1) contained no definition for the language "appears to be a minor" or "conveys the impression," (2) failed to specify the exact conduct prohibited, and (3) gave law enforcement officials too much discretion to determine their own definition of such phrases. (41) The Act was overbroad because it prohibited material with sexual content not utilizing actual minors, which is protected by the First Amendment. (42) The court indicated that Congress can protect children by criminalizing material actually depicting them engaging in sexual activity. (43)