COPA Held Unconstitutional (Again)

The Third Circuit wrote the latest chapter today in the ongoing saga of the Child Online Protection Act (COPA), a law that Congress passed in 1998 to replace the Communications Decency Act, which the Supreme Court declared unconstitutional in 1997. In general terms, COPA prohibits commercial websites from publishing material "harmful to minors" (even if that material is not obscene) without making a good faith effort to prevent anyone younger than 17 from viewing it. Requiring a credit card would be an example of a good faith effort.

The law was promptly enjoined by a district court because it seemed likely to abridge First Amendment rights. That decision was affirmed by the Third Circuit, but the Supreme Court disagreed with the Third Circuit's narrow decision. The case went back to the Third Circuit, which again agreed with the district court. Another trip to the Supreme Court produced a 5-4 decision upholding the injunction on the ground that there are probably less restrictive ways of protecting minors, including filtering software, than criminalizing the distribution of "harmful" materials. [more ...]

The case then returned to the district court for a trial on the merits. The district court found COPA unconstitutional and entered a permanent injunction. The government again appealed. Today, the Third Circuit affirmed the injunction.

The ACLU's Chris Hansen, a First Amendment lawyer for the rights group, applauded the decision. "For years the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional," Hansen wrote in a statement. "The government has no more right to censor the internet than it does books and magazines." ...

The ACLU, suing on behalf of Salon magazine sexualhealth.com and the owner of the Urban Dictionary website, successfully argued that the law criminalizes constitutionally protected speech, would drive pornography sites to non-U.S. servers, and prevent the spread of health information due to people's unwillingness to register to read sensitive information. They also argued the law would apply to anyone who wrote about mature subjects who also happened to have Google or Yahoo ads on their personal blog.

The Third Circuit held that COPA impermissibly limits more speech than is necessary to protect minors from harm. The court also noted that COPA does not apply to foreign websites, which account for half of the pornography on the web, and is therefore an ineffective means of protecting children, who will simply view foreign porn rather than American porn. Filtering software is a more effective alternative that is less restrictive of First Amendment rights since parents can choose to turn it on or off to protect their children.

The court was unimpressed with the requirement that websites obtain age verification given the ease with which kids can circumvent the requirement (a credit card number, after all, doesn't prove the age of the person who typed it in). On the other hand, age verification would chill the exercise of free speech because some adults who want to access information on the web would decline to do so because they don't want to disclose their credit card or drivers license numbers, or because they want to preserve their anonymity.

The Justice Department is not pleased with the decision and is reviewing its options, according to spokesman Charles Miller.

The decision is here (pdf).

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    In my mind.... (5.00 / 2) (#5)
    by kdog on Wed Jul 23, 2008 at 08:30:58 AM EST
    protecting the children includes leaving them a Bill of Rights.

    I'm amazed Congress and the Executive don't see the unconsitutionality before crap law like this gets passed....are they that stupid or do they really not give a damn about liberty?

    crap law (none / 0) (#6)
    by Turbulent Confusion on Wed Jul 23, 2008 at 11:32:49 AM EST
    I think you hit it on the head here.  "Big Government loves unarmed peasants" could be used here.  If we continue to allow the government to take away our freedoms to decide on what or what NOT to teach and show our children, then all we are allowing is the continued police-state mentality that government would like to have.  

    If we look into the facts of how the government runs itself since Reagan, you can see the slow creep of National government taking over the responsibilities that were the States and the individual.  How to police it's criminals, how to teach and watch your children, how you work and ultimately how you die.  The continued heavy-handedness of federal government can only be reversed if "We The People" want to make it so.  As we allow our elected officials such wide notions by continuously reelecting them, we have in essence given them the charter to oppress all the citizens of this nation in one way or another.

    We allow national speed limits, we allow laws against groups, we allow unfettered access to our communications, we allow shown corruption to continue.  Why? Because we are concerned about falling house prices, gas prices, the boogie man that wants your children, Al Quieda(sp!), global melt-down.  All of which have been created by the government in (so far) successful attempts to cull the lot of us into believing that this was not a Republic based on the rights of individuals over that of a Monarch.  That we must have their guidance to live safe, happy, and productive lives.

    We are no longer the land of the Free.  All that is missing are the barcodes, and swastika's.

    Let us hope that our choices over the next 8 to 10 years prove us to be a people that value our freedom, and not that of a population willing to give up those certain inalienable rights...


    You're a man after.... (none / 0) (#8)
    by kdog on Wed Jul 23, 2008 at 12:13:42 PM EST
    me own heart brother.

    I fear the preservation of liberty is not on the top of most people's wish list, people prefer their "safety", their "security", their "protection from harm"...and will throw glorious freedom under the bus at the soonest opportunity for false promises of safety and protection.

    Short-sighted, panic driven thinking at its worst.  "Gasp, their is objectionable (to some) material on the internet!  Big Brother protect us!"  

    What a bunch of pansies we are...unwilling to make the effort to protect ourselves and our own, we'd rather outsource to eager tyrants in benevolent clothing.


    Trying to think a step or so down the line... (none / 0) (#1)
    by EL seattle on Wed Jul 23, 2008 at 02:23:55 AM EST
    What about cell phones and other personal devices?

    Younger and younger kids are getting their own phones, and the phones are becoming more and more web-capable.  Will all of the service providers offering filtering as part of the account?  Or will parents have to ride herd on these different gizmos as well as the family's home computer?

    Well (none / 0) (#2)
    by Steve M on Wed Jul 23, 2008 at 06:05:33 AM EST
    as a parent, I'm pretty sure I wouldn't buy my kid an Internet-capable phone unless I was fine with them having access to the Internet.

    The main reason younger kids get phones is so they can call home in an emergency.  Now, maybe Internet access will become like cameras someday in that it will be difficult to locate a phone without it, but we'll have to see about that.


    monitoring cell phones (none / 0) (#7)
    by Turbulent Confusion on Wed Jul 23, 2008 at 11:38:23 AM EST
    isn't that what parenting is all about though?  the care and maintenance of one's children?  These are the true values lost.  When you allow someone else to teach your children, and "protect" them, you are allowing the ultimate programming of future generations to the will of the Police-State.

    Yes.... (none / 0) (#9)
    by kdog on Wed Jul 23, 2008 at 12:22:01 PM EST
    it is a parent's responsibility...but that takes effort.  Hard work.  Time.

    Easier just to hand the internets over to Big Brother to censor.  We can trust them...lol.


    Oh, no! (none / 0) (#3)
    by mwb on Wed Jul 23, 2008 at 06:53:12 AM EST
    "... and is therefore an ineffective means of protecting children, who will simply view foreign porn rather than American porn..."

    There's a buy American ad lurking in their somewhere.