SEX, LAWS, AND CYBERSPACE: ORGANIZED INTEREST LITIGATION BEFORE THE U.S. SUPREME COURT

Technological changes have profound implications for the American legal sysem, because they have the capacity to unsettle existing power relationships and instigate the development and organization of new interests and to affect the mobilization of interested parties and the initiation of litigation.

They can also affect the content of cases entering the courts and the substance of the law; courts' processes and procedures; and the dissemination and exchange of information among courts, legal actors, and the public. This article will discuss how technological innovation and ensuing government regulations may raise new legal questions, alter the dynamics of group litigation and group relationships, and create opportunities for organized interests to lobby for legal change and subsequently usher new claims into the courts. In particular, I examine whether a technological change such as the Internet challenged the established legal paradigm for sexually explicit speech and in doing so prompted an increase in litigation among existing organized interests and the development of new organized interests in response to the legal uncertainties associated with the Internet.

Technological changes and developments in communications "have profound social and political consequences" (de Sola Pool, 1998:237). Such change often prompts new legislative activity, as legislators enact laws designed to regulate new communicative media; litigation challenging the laws often follows. Government regulation of new means of communication inevitably raises questions about the applicability of the First Amendment freedoms of speech and press to new types of technologies. As a result, the courts often bear the burden of resolving new legal questions raised by technological innovations. Given the likelihood that the courts will resolve the legal uncertainty associated with new technological developments such as the Internet, it seems probable that organized interests will increase their legal participation to facilitate outcomes beneficial to them. This article explores the proposition that a technological development such as the Internet will create legal uncertainty and prompt organized interests to facilitate the resolution of these uncertainties via legal challenges, thereby increasing their participation in sexually explicit speech litigation to advance their interests at the U.S. Supreme Court.

The Internet and Sexually Explicit Speech Regulation. In 1993, generally recognized as the point at which the Internet "goes public," traffic on the Internet expanded at a 341,634 percent annual growth rate (PBS, 2003). Governing bodies began to take advantage of the Internet in 1993; both the White House and the United Nations went online, and businesses and media began to capitalize on the Internet as well (Zakon, 2003). This rapid growth was a combination of a number of factors. Notably, in 1993, Tim Berners-Lee-the developer of the World Wide Web-announced that the European Organization for Nuclear Research (CERN) "would not attempt to patent or claim any copyright fees for the technology underlying the web. This meant that there would be no restrictions on becoming part of the web," which facilitated it becoming "a virtually universal repository of computer-based information and entertainment" (Volti, 2001:212). At the same time, the first graphics-based World Wide Web browser (Mosaic) became available (PBS, 2003), and the National Science Foundation created InterNIC to provide specific Internet support services, including directory and database registration and information services (Zakon, 2003).

The rapid growth of the Internet initiated in 1993 continues to the present day: it is estimated that in the twenty-first century, approximately 143 million Americans will use the Internet regularly (Lane, 2002), and these individuals will have access to almost 395 million Internet hosts (Internet Systems Consortium, 2006). A consequence of this growth is government attempts to regulate the Internet. The unique communicative capabilities of the Internet, however, make it a difficult medium to regulate.

In the United States, one of the foci of government regulation is the dissemination of sexually explicit speech online. However, there is a great deal of legal uncertainty associated with government regulation of this type of speech, with the uncertainty compounded by a number of factors. First, most law is based on geographic boundaries and borders, but electronic communications undermine the notion of sovereign control of territorial boundaries because the borderless online world is not easily subject to existing national laws (Johnson and Post, 1996; Reidenberg, 1996). Governments cannot easily control the flow of information on the Internet because much material accessed within one nation's borders is produced and stored elsewhere, making it difficult to reach producers and distributors of sexually explicit speech located in other nations. Second, the Internet has radicalized the economy of information. The Internet's architecture-the combination of anonymity and encryption-makes it easy to conceal one's identity on the Internet (Biegel, 2001:52; Lessig, 1999:33), and the sheer volume of data available in cyberspace makes the Internet nearly impossible to regulate (Biegel, 2001:52). The Internet enables individuals to exchange sexually explicit speech cheaply and anonymously across geographic boundaries. This distinguishes it from other media, such as print, television, cable, and video, which are subject to national, state, and local laws, predicated on geographic boundaries, which regulate sexually explicit speech; subsequently, legal uncertainty about the feasibility of government regulation of sexually explicit speech on the Internet is created.

In the past, the Supreme Court has addressed government attempts to prohibit the dissemination of sexually explicit speech via the radio, telephone, and television, and it is likely that legal uncertainties about online sexually explicit speech will also be resolved by the courts. Indeed, it has been suggested, "The old axiom that law follows social and technological changes is clearly demonstrated in the area of obscenity jurisprudence" (Mackey, 2002:122). The borderless nature of the Internet, however, poses a unique challenge to the standard used by the Supreme Court to determine whether government restrictions on sexually explicit speech are constitutional. Since 1973, the Supreme Court has relied on the test it propounded that year in Miller v. California (1973), which stated that materials will be identified as obscene by "the average person applying contemporary community standards," thus predicating an integral component of the test on the norms and values of distinct geographic communities. Local community standards are difficult to apply to the Internet because the online community, a mammoth international one, is not a community in the traditional sense. Thus, it is unclear how "contemporary community standards" should be defined and applied on the Internet. The difficulties associated with applying the Miller test to the Internet have created legal uncertainty in sexually explicit speech jurisprudence, and the Supreme Court likely will have to determine whether the Miller test should be applied to the Internet, for example, by defining an Internet community, or if an alternative standard should be adopted for the Internet or all media. This legal uncertainty about the future of the Miller test, and the likelihood that the Supreme Court will revisit the standard for evaluating obscenity for the first time since 1973, provides organized interests with an opportunity to lobby the Court to ensure that their respective interests are embodied in any new legal standards that are promulgated.

To date, Congress has passed legislation addressing a variety of perceived harms associated with Internet dissemination of sexually explicit speech. These laws include attempts to target and regulate online sexually explicit speech that is indecent or harmful to minors and to limit virtual child pornography. Congress has also used its spending power to impose filtering-and-blocking requirements on American public libraries. Each of these attempts has been the subject of legal challenges, which resulted in a Supreme Court decision. Congress included provisions in these laws to expedite legal challenges through the federal court system, resulting in guaranteed Supreme Court rulings in the event of an appeal.

Five Supreme Court cases have addressed congressional regulation of sexually explicit speech on the Internet. In three-Reno v. American Civil Liberties Union ( 1997), Ashcroft v. Free Speech Coalition (2002), and Ashcroft v. American Civil Liberties Union (2004)-the Court declared the congressional legislation unconstitutional or legally problematic, while in the remaining two-Ashcroft v. American Civil Liberties Union (2002) and United States v. American Library Association (2003)-a majority of the justices upheld the challenged components of the congressional regulation.

These cases demonstrate that the courts have assumed the burden of resolving the new legal questions raised by government regulation of an innovative technological development such as the Internet. As a result of the uncertainty associated with the application of existing legal norms and rules to this new medium, and the role that the courts are playing in the resolution of these issues, organized interests may perceive new strategic policy opportunities to initiate or increase their participation in sexually explicit speech litigation.

Existing Research. Political science research has clearly established that organized interest groups use courts to pursue their goals; in doing so, they are strategic actors maximizing their opportunities. While organized interests are only one set of actors among many in the judicial system, they use a number of different tools to influence the legal process and play an integral role in federal litigation. Filing amicus curiae briefs (Caldeira and Wright, 1990; Collins, 2004; O'Connor and Epstein, 1981-82) and direct sponsorship of cases are the two most common tools used by organized interests to lobby the courts. To increase their likelihood of success in the courts, organized interests often look to one another for cues and support and form alliances with other groups (Heinz et al., 1993; Schlozman and Tierney, 1986). Groups are likely to coordinate activities and share resources when planning litigation (Hojnacki, 1997), and they form alliances to file amicus briefs (Olson, 1984, 1990) when they believe working with other groups or a large number of participants may increase the likelihood of success.

Existing research on the role that organized interests play in obscenity litigation has focused primarily on how the judicial environment and the Supreme Court's Miller decision conditioned the behavior of interest groups after 1973 (Kobylka, 1987, 1991; McGuire and Caldeira, 1993). For example, Kobylka (1991) argued that the Supreme Court's decision in Miller v. California ( 1973) constituted a doctrinal change that established interest-group litigation patterns. He concluded that proscriptive groups-those interested in prohibiting sexually explicit speech-viewed the Miller decision as a victory and continued their previous legal strategy, whereas libertarian organized interests changed their strategies in response to the ruling. The American Civil Liberties Union (ACLU), a libertarian-purposive group that pursues broadly defined societal goods and rewards its members with intangible benefits, perceived the changing makeup of the Supreme Court and the subsequent Miller decision to be insurmountable barriers to its goal of gaining First Amendment protection for obscenity. The ACLU subsequently deemphasized obscenity litigation and abdicated its leadership position. In contrast, libertarian-material groups, those groups that pursue specific goods that provide their members with tangible benefits, increased their litigation and changed their legal arguments to fill the void left by the ACLU and to protect their material interests (Kobylka, 1991). Given the advent of a technological change such as the Internet, however, and the challenges it poses to the Miller test, the post-Miller equilibrium among organized interests in the legal arena may have become unsettled, resulting in new patterns of organized-interest litigation activity in sexually explicit speech cases before the Supreme Court.

THIS STUDY

The analysis presented here will proceed in three parts. The first concerns organizedinterest participation in sexually explicit speech cases before the Rehnquist Court, including a comparison of the participation rates for libertarian and proscriptive organized interests in the pre-Internet and Internet eras, to determine whether the Internet prompted existing organized interests to increase their participation and whether new interests organized and subsequently participated. The second will be a review of the participation of libertarian organized interests in the Internet era, particularly those which participated in three or more of the Internet-specific Supreme Court sexually explicit speech cases, to explore the behavior of these groups in more detail and to evaluate which libertarian organized interests assumed leadership roles. Repeat players are of particular interest because their frequent participation suggests that they have a vested interest in the outcome of sexually explicit speech cases in the Supreme Court. The third part is a discussion of proscriptive organized interests' participation, with greater attention given to those identified as repeat players. As part of this discussion, organized interests' Supreme Court briefs will be reviewed to elucidate how the development of the Internet influenced the legal arguments and terminology used by these groups in sexually explicit speech litigation.

Methods. This study includes twenty-three Supreme Court cases on sexually explicit speech, including the five Internet-specific cases decided on the merits between 1986 and 2005; summary dispositions of cases and cases denied certiorari are not included. The Rehnquist Court era is divided into two time periods, pre-Internet (1986-93) and Internet (1994-2005). Eleven of these Supreme Court cases were decided in the pre-Internet era and twelve in the Internet era. In addition, the briefs of organized interests that participated in 50 percent or more of the Internet-era cases, including at least one of the five major Supreme Court cases, were subject to content analysis. A total of twenty-nine briefs submitted by both libertarian and proscriptive organized interests were coded and analyzed.

All participating organizations were classified and divided into six categories based on two characteristics: 1) orientation on the issue of sexually explicit speech, either libertarian, opposing the proscription of sexually explicit speech, or prescriptive, supporting proscription of sexually explicit speech (Kobylka, 1991), and 2) organizational type, nonmembership organizations; purposive-membership groups, pursuing broadly defined societal goods that reward their members with intangible (or purposive) benefits and incentives; or material-membership groups, pursuing specific goods that provide their members with tangible (or material) benefits and incentives (Moe, 1980; Olson, 1965; Wilson, 1995). In addition, Kobylka (1991) distinguished between material-commercial and material-professional groups. Commercial groups, such as the American Booksellers Association, "exist to protect the economic profitability of their members," whereas professional groups, such as the American Library Association, "promote professional norms for specific occupational strata" (p. 16).

THE INCREASE IN ORGANIZED-INTEREST PARTICIPATION IN THE INTERNET ERA

Many organized interests participated in sexually explicit speech litigation before the Rehnquist Court. There were 206 organized interests-126 libertarian and 80 proscriptive, including 166 membership groups and 40 nonmembership organizations. Many of these organized interests-113 of them-were "one-hit wonders"; that is, they participated in only one case. Thirty-four participated in only two cases, and 59 participated in three or more cases.

Some 181 organized interests-both libertarian and prescriptive-pursued their interests in the Internet era (1994-2005) by participating in this litigation, while only 74 organized interests had participated in the pre-Internet era (1986-93). The number of libertarian organized interests participating increased from 35 in the preInternet era to 117 in the Internet era; for prescriptive organized interests, the increase was from 39 to 64. Of the organized interests participating in this litigation in the Internet era, 126 (86 libertarian and 40 prescriptive) were new participants, so nearly 70 percent of the organizations that participated in this litigation did so for the first time in the Internet era (see Table 1).

Thus, in the Internet era, the number of libertarian organized interests participating substantially exceeded the number of prescriptive organized interests participacing (117 libertarian to 64 prescriptive), while in the pre-Internet era, proscriptive organized interests slightly outnumbered libertarian ones (39 to 35). Those organized interests new to sexually explicit speech litigation in the Internet era overwhelmingly were libertarian.

The absolute number of organized interests participating in sexually explicit speech litigation in the Internet era increased for both libertarian and proscriptive organized interests. This was a result of participation in this litigation both by newly developed interests and by those simply new to sexually explicit speech litigation. New organizations began to mobilize the law in the Internet era and sought solutions in the courts. In addition, a number of the organized interests that had been active previously in this type of litigation increased their litigation rates in the Internet era. The evidence thus suggests that organized interests do seek the Court's assistance in resolving the legal uncertainties associated with government regulation of sexually explicit speech on the Internet.

The majority (100) of the organized interests participating in the Internet era cases were "one-hit wonders," yet many organized interests acted as repeat players by participating in multiple cases. Thirty-seven groups participated in three or more cases, and 29 groups participated in four or more cases in the Internet era, while only 14 had participated in three or more cases in the pre-Internet era, so the number of repeat players increased substantially in the Internet era. Libertarian organized interests were more likely to act as repeat players in three or more cases than proscriptive organized interests in the Internet era (see Table 2). As a result, from a near ideological balance of repeat players in the pre-Intemet era, the balance shifted to favor libertarian repeat players in the Internet era.

The Internet-era libertarian repeat players reflected a variety of interests and included purposive groups, material groups, and nonmembership organizations. There were new participants that had developed in response to the Internet and entered Supreme Court sexually explicit speech litigation for the first time in this period, such as the Electronic Frontier Foundation, Center for Democracy and Technology, and Electronic Privacy Information Center. Long-term libertarian participants in Supreme Court sexually explicit speech litigation, such as the American Library Association, American Booksellers Association, and Association of American Publishers, also increased their frequency of participation in the Internet era.

Proscriptive repeat players included the American Center for Law and Justice, a public-interest law firm that participated in this type of litigation for the first time in the Internet era, and purposive membership groups and nonmembership organizations that increased their participation from the pre-Internet era to the Internet era; these included Morality in Media and the National Law Center.

LIBERTARIAN ORGANIZED INTERESTS

We now turn to discuss how the Internet affected organized interests' litigation decisions and strategies; in this section, we examine libertarian groups, and then in the next section we give attention to proscriptive groups. The development of the Internet prompted a number of libertarian organized interests to increase their participation before the Supreme Court and led as well to the creation of numerous new libertarian organizations that have Internet-specific agendas and entered into Supreme Court litigation to advance these interests. Libertarian organized interests also sponsored litigation in each of the five Supreme Court cases specifically addressing congressional regulation of sexually explicit speech on the Internet.

Libertarian Organized Interests Increased Participation in the Internet Era. A number of existing libertarian organized interests increased their participation in the Internet era. Of particular interest are those libertarian repeat players that participated in three or more of the five Internet-specific cases (see Table 3). These included both material and purposive organized interests.

Among libertarian organized interests, three material groups-the American Library Association (ALA), American Booksellers Association (ABA), and Association of American Publishers (AAP)-participated more frequently than nearly every other single organized interest active in sexually explicit speech litigation in the Internet era. The only other organizations that participated at comparable levels are the proscriptive organizations Morality in Media and National Law Center.

In addition, liberal-material groups, including both commercial and professional groups, substantially increased their participation in the Internet era. The ALA more than doubled its participation in the Internet era, and the ABA, AAP, American Society of Journalists and Authors, Authors League of America, Magazine Publishers Association, and Society of Professional Journalists also substantially increased their rates of participation. This frequency of participation is particularly interesting, given that each group is traditionally affiliated with brick-and-mortar writing, production, and distribution; yet they mobilized to defend electronic speech.

The increase in their participation rates reflects the extent to which the development of the Internet has affected their respective industries and professions, and it indicates that libertarian-material groups are defending their members' financial, commercial, and professional interests related to the Internet. For example, the ABA and AAP are both material-commercial organized interests committed to protecting the financial interests of their members in the new technologies. The AAP's participation in Internet litigation reflects the changing and expanding interests of its membership, which, in addition to traditional book publishers, now includes computer software publishers and companies that develop electronic products and provide electronic services, so that the association's "core" programs in the Internet era include "intellectual property, new technology, and telecommunications issues of concern to publishers" (Association of American Publishers, 2005). Thus, the large increases in participation in the Internet era by the ABA, AAP, and other libertarian-commercial interests may be attributed to the changing nature of their respective industries as book production and publishing assumed new dimensions in the era of electronic media. These commitments are reflected in the legal briefs submitted by the ABA and AAP, in which they explicitly argued that the Internet is a new medium with unique potential. They therefore resisted government attempts to impose restrictive regulations on the Internet that may infringe on the First Amendment rights of adults.

In addition, the ABA and AAP changed the form of their participation in the Internet era as they began to participate as parties to litigation. Before the Internet era, ABA participation in sexually explicit speech cases was exclusively a function of the ABAs participation in the Media Coalition, a set of libertarian-material organized interests that opposed overly broad obscenity laws and prosecutions under them. In the Internet era, the ABA continued to participate in Media Coalition amicus briefs, including the one filed in Ashcroft v. Free Speech Coalition (2002), and it signed onto an amicus brief by the Center for Democracy and Technology in United States v. American Library Association (2003). However, it also joined with the ALA and other libertarian material groups and businesses to sponsor Reno v. ACLU (1997), and it partnered with the ACLU, a number of libertarian-purposive groups, and Internet businesses to sponsor Ashcroft v. ACLU (2002) and Ashcroft v. ACLU (2004). Similarly, the AAP participated as cocounsel in the ALA legal challenge to the Communications Decency Act in Reno v. ACLU (1997) and joined other libertarian material groups to sponsor amicus briefs in the remaining four Internet cases.

Interestingly, the group that took the lead in defending libertarian-material interests and was the most frequent participant among all libertarian organizations, the American Library Association (ALA), has no financial stake in the Internet. As a material-professional group, its investment in Internet-related litigation appears to stem from the group's commitment to protecting the professional interests of its members as well as the First Amendment rights of library patrons in the Internet era. The ALA increased its participation from 36 percent of the pre-Internet era cases to 92 percent in the Internet era and participated in each of the five Supreme Court cases dealing with federal regulation of the Internet. The ALA also changed its form of participation in the Internet era and assumed a leadership role among libertarian organized interests when it helped to coordinate and initiate legal action in Reno v. ACLU (1997) and U.S. v. American Library Association (2003).

The contents of the ALA's legal briefs reflect its interest in protecting the Internet from government regulation. Consistent with its interest in guaranteeing unhindered Internet access for users (including minors) in public libraries, the ALA argued that the Internet should not be subject to existing regulatory frameworks for other media or to the Miller test because the Internet is a unique communicative medium that is not analogous to existing media. These legal arguments are consistent with the "Access to Electronic Information, Services, and Networks: An Interpretation of the Library Bill of Rights," adopted by ALA's Governing Council in 1996, which was intended to articulate how the Library Bill of Rights should be applied to electronic information, services, and networks. The ALA acknowledged that "providing connections to global information, services, and networks is not the same as selecting and purchasing material for a library collection" and recognized the problems associated with electronic information, but reaffirmed that the Library Bill of Rights was intended to defend the rights of users in all media (American Library Association, 1996). As a result, the ALA advocates a broad interpretation and defense of the First Amendment and user-privacy rights that extends to both adults and children regardless of format or technology. This includes opposition to filtering and blocking software that may deny library patrons access to constitutionally protected speech, and a belief that it is not the position of libraries or librarians to deny individuals access to electronic information that is deemed controversial or valueless; instead, libraries and librarians should provide library patrons, including children, with access to all speech at the user's discretion (American Library Association, 1996).

Libertarian-purposive groups also increased their participation in the Internet era. While the ACLU minimally increased its participation, People for the American Way (PAW) increased its participation in litigation from 35 to 50 percent of the cases decided and began to join with other libertarian organizations to sponsor litigation. Notably, PAW partnered with the ALA and other organizations to coordinate the litigation resulting in the Supreme Court's decisions in Reno v. ACLU (1997) and U.S. v. American Library Association (2003), and it has emerged as an important purposive player in the Internet era. Volunteer Lawyers for the Arts increased its participation as well; it filed amicus briefs in three of the five Internet cases.

New Libertarian Organized Interests. A number of new libertarian organized interests also began to participate in sexually explicit speech litigation in the Internet era. These new players participated primarily as amici, but some newly formed groups cosponsored litigation as well. While these organizations did not participate in as many cases as the libertarian organized interests discussed above, their entrance into litigation is noteworthy because some of them developed in direct response to the Internet, and nearly all of the new Internet-specific organized interests are libertarian.

Some newly formed libertarian organizations, such as the Electronic Frontier Foundation (EFF), the Electronic Privacy Information Center (EPIC), and the Center for Democracy and Technology (CDT), developed as a result of advances in communications technologies. They exist to defend the Internet from government regulation and do so without financial incentive, and each has been active in sexually explicit speech litigation in the Supreme Court and worked with other libertarian organized interests to sponsor litigation. For example, EFF, a libertarian-purposive group whose goals include protecting the Internet from censorship and preserving it as a free-speech zone, and EPIC, a public-interest research center established in 1994 to "protect privacy, freedom of expression, democratic values, and to promote the public voice in decisions concerning the future of the Internet," each participated in 33 percent of the Internet-era cases and sponsored litigation in conjunction with the ACLU in four of the five Supreme Court Internet cases (Electronic Privacy Information Center, 2004).

Similarly, the Center for Democracy and Technology (CDT), founded in December 1994 "to develop public policies that preserve and advance democratic values and constitutional civil liberties on the Internet and other interactive communications media," also participated in one-third of the Internet-era cases, including four of the five major Internet cases, and worked with the ALA to coordinate and sponsor one of the legal challenges to the Communications Decency Act that resulted in Reno v. ACLU (1997) (Center for Democracy and Technology, 1996:1).

Among libertarian organized interests that formed in response to the Internet and participated in the litigation were material groups such as the Commercial Internet eXchange, representing the Internet-service-providers community, which worked with the ALA to sponsor litigation in Reno v. ACLU (1997), and the Computer and Communications Industry Association, Information Technology Association of America, and the Internet Content Coalition, which participated as amici in the two Ashcroft v. ACLU cases (2002, 2004). The development and participation of these libertarian-material, especially commercial, organizations indicates that new economic markets prompt the creation of new material organizations. The economic potential of the Internet led individuals and corporations to coalesce to protect their business interests and defend new economic markets from government regulation.

In addition, libertarian-material groups that existed before the Internet began to participate in litigation during the Internet era. These included sponsors of litigation such as the American Society of Newspaper Editors, Free Speech Coalition, and Newspaper Association of America, as well as those organized interests that participated as amici curiae such as the Comic Book Legal Defense Fund and Publishers Marketing Association. The increase in participation by the Publishers Marketing Association (PMA) is notable; for the first thirteen years of its existence, it did not participate in sexually explicit speech litigation in the Supreme Court, but beginning in 1996, it participated in seven of the eleven cases decided over the next eight years, including four of the five Internet cases. PMA participated in 58 percent of the Internet-era Supreme Court cases, and in each instance, it signed on to an amicus brief with various libertarian-material groups. Thus, it went from being a nonfactor to the fifth most frequent libertarian organized interest participating in sexually explicit speech litigation.

PMA's decision to enter into sexually explicit speech litigation likely reflects its desire to protect its members' commercial interests. PMA was founded in 1983 as a trade association for small to midsize independent publishers of books, audio, and video. With the advent of the Internet, many independent publishers began to take advantage of the economic efficiency associated with publishing online, and PMA membership grew to include e-publishers who are committed to extending broad First Amendment protections to the Internet.

Libertarian Sponsors of Litigation. Libertarian organized interests initiated each legal challenge resulting in a Supreme Court decision. While numerous libertarian interests participated as parties to the litigation, a select few assumed the burden of sponsoring litigation. Sponsorship, defined here as those groups that coordinated, initiated, and executed the legal challenges, is based on press reports and those groups that supplied a lawyer as either counsel, counsel of record, or the attorney presenting oral argument before the Supreme Court. Available data do not include groups' financial commitment to these cases.

The ACLU was the most active sponsor of litigation in the Internet cases and played a vital role in ushering and arguing cases at the Supreme Court, despite the fact that it participated less frequently than the ALA, ABA, or AAP. The ACLU coordinated and initiated legal challenges in four of the five Internet cases, and it filed an amicus brief in the fifth. The ACLU initiated one of the two legal challenges that resulted in the Supreme Court's decisions in Reno v. ACLU (1997) and United States v. American Library Association (2003), and ACLU attorney Christopher Hansen served as the counsel of record on the ACLU's brief for the numerous appellees in Reno v. ACLU (1997) and United States v. American Library Association (2003). The ACLU also initiated and coordinated the sole legal challenges that resulted in Ashcroft v. ACLU (2002) and Ashcroft v. ACLU (2004), and ACLU legal counsel Ann Beeson argued both cases in the federal courts, including the U.S. Supreme Court. The Electronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC) served as cocounsel in each of the four cases.

The ACLU's active role in sponsoring litigation in the Internet era was a change from the pre-Internet era, when the ACLU's only participation was filing amicus curiae briefs. Between 1994 and 2005, the ACLU sponsored litigation in 75 percent of the Supreme Court cases involving sexually explicit speech in which it participated. This change in strategy reflects the ACLU's commitment to guaranteeing First Amendment protections to sexually explicit speech on the Internet, which is pan of a larger organizational agenda that is committed to protecting cyber liberties generally. The ACLU has filed numerous lawsuits and amicus curiae briefs in the courts to challenge a variety of federal and state laws that regulate the Internet, such as cases dealing with broadband Internet services, Internet privacy violations, and government censorship of the Internet-including sexually explicit speech.

This dedication to cyber freedom has been evident since the mid-1990s when the ACLU initiated legal action in response to the Communications Decency Act of 1996, and it was exemplified when the ACLU launched its Technology and Liberty Program to focus attention on a wide variety of cyber issues, including "protecting against expanded government surveillance practices and reviving the principles of the 4th Amendment to the Constitution; protecting the right of free speech in the face of new intellectual property regimes; protecting civil liberties as biotechnology advances and fighting online censorship laws" (ACLU, 2003). The advent of the Internet appears to have invigorated the ACLU's participation in sexually explicit speech litigation after it abdicated its leadership role in the aftermath of the Supreme Court's decision in Miller v. Colifornia (1973) (Kobylka, 1991).

Similarly, as previously mentioned, the ALA changed its litigation strategy and assumed more of a leadership role among libertarian organized interests in the Internet era. Between 1986 and 1993, ALA participation consisted exclusively of filing amicus briefs but, after 1993, the ALA worked with a variety of other libertarian organized interests, including the Association of American Publishers, Center for Democracy and Technology, and People for the American Way, and corporate interests to coordinate the legal challenge to the Communications Decency Act in Reno v. ACLU (1997). The ALA lawsuit was consolidated with the ACLU's legal challenge in district court, and the attorneys worked together from that point forward. Similarly, in 2001, the ALA membership voted to initiate legal action against the Children's Internet Protection Act and, joined by People for the American Way as supporting counsel, initiated a legal challenge that was consolidated with the ACLU's case at the district court level and ultimately resulted in U.S. v. American Library Association (2003). Thus, each time the ALA initiated litigation, it worked with libertarian nonmembership, purposive, and material organizations such as CDT, the ACLU, PAW, and the AAP to advance libertarian goals. In the remaining three Internet cases, the ALA participated by joining with other libertarian-material groups to sponsor amicus briefs opposing government regulation.

Finally, although the Free Speech Coalition, founded in 1988 as the Adult Video Association and renamed in 1992, only participated in a single Supreme Court case to date, it is notable because it was a plaintiff, and the only organized interest acting as a party to the litigation, in the second Supreme Court case dealing with federal regulation of sexually explicit speech on the Internet. In Ashcroft v. Free Speech Coalition (2002), the Free Speech Coalition, a libertarian-material trade association representing the adult-entertainment industry in First and Fourth Amendment cases, successfully challenged the constitutionality of the Child Pornography Prevention Act.

Overall, libertarian organized interests participating in Supreme Court sexually explicit speech litigation in the Internet era represented a diversity of interests and organizational types and consisted of both previous and new participants in sexually explicit speech litigation. Nonmembership and membership organizations, including purposive, material-commercial, and material-professional interests, coordinated their litigation activities to promote a united front in opposition to government regulation of sexually explicit speech. These libertarian organized interests, particularly the ACLU, played an instrumental role in initiating the legal challenges to congressional regulation of the Internet that resulted in Supreme Court decisions.

While libertarian organized interests were motivated to participate for different reasons, libertarian nonmembership, purposive, and material organized interests advanced nearly identical arguments before the Supreme Court in the Internet cases. Libertarian organized interests heralded the Internet as a new and revolutionary communicative medium unlike any other existing medium. As a result, they argued that existing regulatory regimes-including Miller-should not be applied to the Internet. Various groups differentiated the Internet from radio, television, broadcast, telephone, bookstores, etc., and suggested that the lack of geographical boundaries and the anonymity associated with the Internet make it impossible to impose the geographic community standards required by Miller. Interestingly, some libertarian organized interests, such as the ACLU and People for the American Way, cited the Supreme Court's decision in Miller v. California (1973) as support for their position that a national, as opposed to a local, community standard is unconstitutional. They argued that Miller requires contemporary community standards to account for geographical diversity, and a national American adult standard fails to accommodate this requirement. For the most part, libertarian organized interests recognized the Internet as a democratic medium that should not be subject to government regulation because such controls may inhibit its ability to freely develop and achieve its potential. This legal argument is commensurate with their legal strategy of challenging in the courts each congressional attempt to regulate the Internet.

PROSCRIPTIVE ORGANIZED INTERESTS

Proscriptive organized interests also increased their participation in the Internet era; a number of new interests participated in litigation, and individual organizations increased their participation relative to the pre-Internet era. This increase in participation, however, was a reflection of mobilization among existing organized interests rather than a result of the development of new organized interests in response to the Internet. Some proscriptive organized interests that had developed as a result of the rise of the religious right in the 1980s began to enter sexually explicit speech litigation in the Internet era, but none was an Internet-specific organization. Moreover, the American Center for Law and Justice (ACLJ), founded in 1990, was the only proscriptive organized interest new to sexually explicit speech litigation at the Supreme Court in the Internet era that participated in three or more cases. Thus, with the exception of ACLJ, proscriptive organized interests new to sexually explicit speech litigation in the Internet era were not repeat players.

Although proscriptive organizations engaged in litigation did not proliferate in response to the Internet, existing organized interests did participate in litigation with greater frequency in the Internet era. Most notably, the long-term participant Morality in Media dramatically increased its litigation participation during the Internet era. In addition, the arguments articulated in the legal briefs submitted by most of the proscriptive organized interests addressed the Internet and its unique communicative qualities, but presented a greater diversity of legal arguments to the Court than did libertarian organized interests.

In the Internet era, one of the most interesting developments among proscriptive organized interests was the ascendancy of Morality in Media (MIM), which became the most active proscriptive organized interest, exceeding the participation rates of all other organized interests with the exception of the ALA. This significant increase in participation appears, however, to be directly related to the demise of Citizens for Decency Through Law (CDL) and was not a result of the Internet per se, although MIM explicitly addressed the challenges associated with regulating the Internet in its briefs, and argued that the Internet is a particularly pernicious medium that must be regulated to protect society and children from harm. For decades, the two organizations had existed simultaneously, with CDL taking the lead in participating in Supreme Court sexually explicit speech litigation, doing so in 64 percent of the cases in the pre-Intemet era. In the late 1980s, however, CDL's founder, Charles Keating, became the focus of a political and legal controversy related to the savings-and-loan crisis, and CDL, renamed the Children's Legal Foundation in 1989, failed to participate in a single formally decided Supreme Court case in the Internet era. MIM filled the void left by CDL and significantly increased its presence in the Internet era. Morality in Media's participation consisted exclusively of amicus activity. It filed amicus briefs advocating a proscriptive position in four of the five Internet-related Supreme Court cases, and it has been instrumental in articulating the proscriptive position at the Supreme Court.

Other proscriptive organized interests frequently participated in sexually explicit speech litigation in the Internet era and, in addition to Morality in Media, five organized interests participated in three or more Internet-specific cases at the Supreme Court, and each increased its participation in the Internet era (see Table 4). Two of these organized interests, the National Law Center (NLC), also known as National Law Center for Protection of Children and Families and National Law Center for Children and Families, and the National Coalition for the Protection of Children and Families, formerly the National Coalition Against Pornography, specifically are focused on combating pornography and its harmful effects. Both interests participated as amicus curiae in both the pre-Internet and Internet eras, and they increased their participation from the former to the latter.

In contrast, the Family Research Council (FRC), a proscriptive-purposive group founded in 1983 as part of the proliferation of proscriptive organized interests during the 1980s, and the National Legal Foundation (NLF), a public-interest law firm founded in 1984, are distinct from the proscriptive organized interests discussed above because their interest in combating obscenity and indecency is simply one component of the broader political agendas they pursue. Both of these organized interests participated as amici curiae in the pre-Internet and Internet eras and increased their participation in the latter period.

A final proscriptive organized interest worthy of mention is the American Center for Law and Justice (ACLJ), a public-interest law firm founded by Pat Robertson in 1990. After no litigation participation in the pre-Internet era, it became involved in over half the relevant cases in the Internet era. ACLJ is the only new proscriptive organized interest to participate in three or more cases in the Internet era, but it quickly established itself as one of the top four proscriptive interests participating in Supreme Court sexually explicit speech litigation and among the top nine most frequent participants overall. The ACLJ's legal agenda is varied, but obscenity regulation is an issue area that has received its regular attention. The increase in ACLJ's participation in sexually explicit speech cases in the Internet era may be partially attributed to the fact that it was founded late in the pre-Internet era, but there is no question that combating the spread of sexually explicit speech is of great concern to ACLJ and its chief counsel. Thus, while the ACLJ is a relatively new organization with a multifaceted agenda, it has elected to sponsor and submit an amicus brief in each of the five sexually explicit speech cases involving the Internet, and seems likely to be a major player among both proscriptive and libertarian organized interests in the years to come.

The proscriptive organized interests described here increased their participation in the Internet era, and with the exception of ACLJ, they recognized the unique communicative components of the Internet and argued that these make online sexually explicit speech especially pernicious and in need of congressional regulation. In contrast to the arguments advanced by libertarian organized interests, proscriptive organized interests presented a less unified front. While all of the proscriptive organized interest briefs included in the content analysis argued that the Court should uphold congressional regulation of sexually explicit speech on the Internet because of the government's legitimate interest in protecting children, there was great diversity among their legal arguments, and there was some disagreement about application of existing regulatory regimes to the Internet as well as the need for a national community standard and a modification of Miller. For example, Morality in Media (MIM) recognized the Internet as different from existing media but argued that it is possible to modify existing legal standards to "fit" the Internet. It suggested that the Miller test be applied to the Internet because the Court's decision in Miller does not require community standards to be defined in reference to a specific geographic community. Instead, MIM argued that Miller allows for a national American adult standard. In contrast, the National Law Center for Children and Families did not suggest that existing regulatory standards be applied to the Internet. Instead, it argued that each of the five congressional laws was a uniquely tailored, medium-specific attempt to regulate the Internet and as such was constitutionally sound.

Proscriptive interests also refuted the libertarian argument that congressional regulation of the Internet would stifle its growth and development and suggested that the opposite may be true. They explained that to promote the development of the Internet and make it accessible to all individuals, including children, government regulation is necessary to prevent the dissemination of inappropriate speech and to ensure that the Internet does not become a haven for illegal activity.

The diversity of legal arguments advanced by proscriptive organized interests may reflect the fact that they were in the position of trying to convince the Supreme Court to uphold restrictive regulations for a new medium, and this required more legal creativity than the libertarian position. In addition, the repeat players among proscriptive organized interests did not develop in response to the Internet or sponsor litigation in the Internet era as did many of the libertarian organized interests. As a result, their reaction to the development of the Internet and their subsequent participation in Supreme Court sexually explicit speech litigation appears to be in response to the legal challenges initiated by libertarian organized interests.

CONCLUSIONS

The Internet, a revolutionary technological change and communicative development, has unsettled the legal environment surrounding sexually explicit speech regulation, and organized interests have responded and revisited the politics of sexually explicit speech at the same time that new organized interests developed and entered litigation in the Internet era. Those organized interests participating in litigation once the Internet era began consisted of long-term participants active in sexually explicit speech litigation in the Supreme Court before the advent of the Internet, existing organized interests that only began to participate in the Internet era, and new participants that developed in response to the Internet.

The advent of the Internet affected both libertarian and proscriptive organized interests, albeit in somewhat different ways. The Internet prompted the development of new Internet-specific libertarian interests and motivated both existing libertarian and proscriptive organized interests to participate in litigation. Notably, libertarian organized interests took the lead in sponsoring litigation challenging congressional regulation of the Internet in each of the five cases decided by the Supreme Court, whereas proscriptive organized interests' participation consisted exclusively of filing amicus curiae briefs. In addition, among those organized interests participating in sexually explicit speech litigation in the pre-Internet era, a substantial number increased their rates of participation in the Internet era. Organized interests participated in Supreme Court sexually explicit speech litigation to varying degrees across the 1986-2005 period. However, this research illustrates that they will adapt their legal strategies in response to technological change, and that organized interests play a valuable role in bringing legal challenges to the Supreme Court and in shaping the context and the terms of the legal debate in response to the Internet. While traditional arguments about adult access to constitutionally protected speech versus protecting children from exposure to such materials and the appropriate standard for review continue to be relevant, the challenges of regulating an international medium have informed this discussion. As a result, the Internet and the characteristics associated with this medium have been introduced into nearly all of organized interests' legal arguments subject to content analysis.

The activities of the various groups reported here indicate that a technological change such as the development of the Internet affects organized-interest mobilization and participation in Supreme Court litigation on sexually explicit speech in much the same way as does a legal change like the Court's decision in Miller v. California (1973), and that the development of the Internet and the subsequent legal uncertainty has an impact on the post-Miller balance of interests. For example, according to Kobylka (1991), after Miller, the ACLU abdicated its leadership position among libertarian groups, and libertarian-material groups mobilized to fill the void and defend their commercial interests. In contrast, in the Internet era, the ACLU has been the leading sponsor of litigation among all organized interests, and it has coordinated, initiated, and financed litigation in four of the five Internet cases. Thus, while libertarian-material groups continue to be major players in the Internet era, they have been joined by additional libertarian organized interests. The Internet era is characterized by a variety of libertarian organized interests-purposive, material (professional and commercial), and nonmembership organizations-working in conjunction with one another to coordinate and sponsor litigation and amicus briefs.

In fact, one of the most interesting developments in the Internet era is the proliferation and subsequent participation of many diverse new organized interests and their coordination with existing interests in an area of litigation with a number of seasoned, long-term participants. This is especially true on the libertarian side, where numerous new libertarian organized interests entered litigation in the Internet era and often worked with existing groups, despite the fact that the ACLU and ALA were not only participating but actively sponsoring, coordinating, and executing litigation strategies in the relevant cases.

In contrast, despite the participation of a number of well-financed and well-organized conservative interests, the proscriptive side of the legal debate appears to be less coordinated and cohesive than the libertarian interests, and ACLJ, the single new organized interest to emerge as a major repeat player in the Internet era, worked alone when filing each of its amicus briefs. There is no evidence to suggest that the lack of coordination affected prescriptive organized interests' ability to achieve their desired outcomes at the Supreme Court, but it is worth noting that three of the five Internet cases decided to date have resulted in victories for the free-speech position. Additional research is necessary to explore further the emergence of new groups and the coordination, or lack thereof, among organized interests. Finally, consistent with Kobylka's research, it will be interesting to see how the changing composition of the Supreme Court affects organized-interest mobilization and litigation in sexually explicit speech cases in the Roberts Court era. jsj