A New First Amendment Model for Evaluating Content-Based Regulation of Internet Pornography: Revising the Strict Scrutiny Model to Better Reflect the Realities of the Modern Media Age

by Patrick M Garry [Brigham Young University Law Review]Abstract: In the modern media age, the number of media venues, along with the types of information and programming those venues carry, is exploding. Nowhere is that explosion more evident than with the Internet. On the positive side, the Internet offers a wealth of information and communications opportunities. But, on the negative side, it brings a boundless store of harmful material within easy access of children. In recognition of the destructive effects of such material – especially obscenity and pornography – Congress on several occasions has tried to curb the accessibility of this material to children. The Supreme Court, however, has struck down these attempts using a strict scrutiny approach.Part I of this Article outlines the case against the Court’s current use of strict scrutiny. This approach hinges on a single factor: whether or not a regulation of speech hinges on a content distinction. Once such a distinction is found, the law is almost always struck down, regardless of the speech burdens actually imposed by the law, whether the subject speech is in plentiful supply in other media venues, or whether the laws would result in a banishment of certain ideas from the public discourse. This myopic focus on content discrimination is outmoded in today’s multimedia world and prohibits regulations of speech even when the burdens imposed by the law are slight and the speech remains available and accessible in the broader marketplace of ideas.Part II of the Article proposes a new judicial model for evaluating content-based laws regulating media programming that is not political speech. This new model examines the actual burdens placed on the subject speech. It also considers perhaps the most vulnerable freedom in the current media environment – the freedom of the unwilling recipient to avoid unwanted and offensive media speech. Furthermore, the new model – a variation of the intermediate scrutiny approach now used for so-called content-neutral regulations of speech – takes into account and incorporates the realities of the modern media world. It does so by recognizing that there is a vast array of media channels through which any one type of speech can flow, and that a restriction of speech in one venue may not rise to the level of an unconstitutional censorship.

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