23 March, 2007

COPA falls in court — "impermissibly vague and overbroad"

Senior U.S. District Judge Lowell Reed Jr. in Philadelphia has found the Child Online Protection Act (COPA) unconstitutional on its face, with a ruling that puts the responsibility for keeping porn away from kids back where it belongs—on the parents:

"Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," Reed wrote in his 84-page opinion in ACLU v. Gonzales [pdf].

The crux of Reed’s reasoning in striking down the law was that there are less-restrictive means available for protecting children than a criminal statute that will have a chilling effect. Parents, Reed said, can protect their children through software filters and other means that do not limit the rights of others to free speech.

The law would have criminalized Web sites that allow children to access material deemed “harmful to minors” by “contemporary community standards.” The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.

Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union challenged the law.

The U.S. Supreme Court in 2004 upheld a temporary injunction Reed had issued early in the case that blocked the law from ever taking effect. [twice: Ashcroft v. ACLU and 2004 ruling Ashcroft v. ACLU, II.]
Reed didn't have to tackle the sticky question of how to apply "contemporary community standards" to the internet, so that the values of a conservative community in Somewheresville can't be used to prosecute someone living anywhere else in the country. NY photographer Barbara Nitke tried to raise this issue in court, but was required to offer near impossible levels of evidence of conflciting standards actually inhibiting speech, even though the trial court agreed that her artistic depictions of sexually marginalized communities put her at risk of prosecution under Miller definitions—which could be unknowingly violated at any time.

The COPA case did briefly flash across the public radar recently, when

[d]iscovery in the case sparked a legal firestorm last year when Google challenged a Justice Department subpoena over what information people seek online. Justice lawyers had asked Google to turn over 1 million random Web addresses and a week’s worth of Google search queries.

A judge sharply limited the scope of the subpoena, which Google had fought on trade secret, not privacy, grounds.

To defend the nine-year-old COPA, government lawyers attacked software filters as burdensome and less effective, even though they have previously defended their use in public schools and libraries.
Great uproar over the privacy invasion & rightly so. What should have also drawn broad condemnation from soi-disant liberals was that the language of the statute would clearly apply to a wide range of speech which the more liberal anti-porn crusaders (call 'em the Tipper crowd) would not have intended to restrict, such as sex education sites. With war the favored paradigm, and a fear of porn that runs deep through America's political fabric—shame shame shame cries the chorus—thankfully there are still a few judges left on the bench who won't pander to it:

. . . Reed disagreed, saying that argument [the credit card requirement] revealed the government’s “fundamental misunderstanding of the reach of COPA: COPA does not apply merely to commercial pornographers but to a wide range of speakers on the Web.”

Due to the broad wording of the statute, Reed said, the law “clearly covers far more speakers on the Web than those who might be defined as commercial pornographers.”

Specifically, Reed found that the law’s use of the terms “commercial purposes” and “engaged in the business” would allow for COPA to be applied to “an inordinate amount of Internet speech.”

As a result, Reed concluded that COPA “facially violates the First and Fifth amendments” because it is “impermissibly vague and overbroad” and was not “narrowly tailored to Congress’ compelling interest,” and the government failed to prove that the statute is the “least restrictive, most effective alternative” in achieving the compelling interest of protecting minors.
COPA was signed into law by Bill Clinton in 1998 without Al Gore uttering a peep of disapproval; it has only taken eight plus years to excise this attaack on free speech. Don't be surprised if the government appeals this decision.

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