A Good Week for Free Expression
March 27th, 2007 by John Morris
The more time we spend with last week’s federal court ruling rejecting the Child Online Protection Act (COPA), the more nice things we have to say about it. Five prior decisions have upheld injunctions against COPA (the original preliminary injunction decision, and two decisions each by the Court of Appeals and the Supreme Court upholding that injunction), but this is the first opinion entered after a full trial on the merits.
Judge Lowell Reed’s decision provides some of the clearest arguments we’ve seen — both for why COPA is unconstitutional, and for why it would be ineffective in protecting children. Reed also endorses the analysis long advocated by CDT: that voluntary Internet filtering tools provide a far more effective, and less restrictive, means for protecting kids online than do hamfisted attempts to censor broad swaths of online content.
This decision should withstand scrutiny on appeal. The Third Circuit Court of Appeals has previously been strongly skeptical of COPA. In the Supreme Court, the vote counting is a closer call, but all five Justices who upheld the preliminary injunction in 2004 are still on the Court, and more critically, the decision issued by Judge Reed strongly reinforces the factual conclusions on which the five Justices acted in 2004. The new guys on the block — Chief Justice Roberts and Justice Alito — replaced Rehnquist and O’Conner, both of whom dissented on COPA in 2004, and tea leaf reading suggests that Roberts and Alito may well end up being more supportive of free speech than their predecessors (or at least not worse).
One key question now of course is how Congress will take the decision. After the Supreme Court rejected the Communications Decency Act, we had hoped Congress would take the kind of action that could actually help kids, without violating the constitution. Instead, lawmakers passed COPA and triggered nine more years — so far — of legal wrangling.
Congress may well let the COPA appellate process play out (through, probably, 2008 or 2009). But if Congress does decide to revisit the issue before then, we hope that it gets the message this time. Rather than try to make another fruitless run at censoring an international medium with an unconstitutional and ineffective U.S. law, we will urge lawmakers to consider an approach that increases investment in education and law enforcement, and that promotes the availability of filtering tools that can help parents protect their kids in the way that they see fit. This is the approach repeatedly endorsed by experts and blue ribbon panels — from former Attorney General Richard Thornburgh in the National Academy of Sciences report to the COPA Commission to Judge Reed in the COPA decision last week. Congress should stop wasting taxpayer money trying to defend unconstitutional laws, and should put that money toward educating kids about how to stay safe online, and educating parents about how best to protect their kids.
This entry was posted on Tuesday, March 27th, 2007 at 4:01 pm and is filed under Free Expression. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
April 1st, 2007 at 3:00 pm
There are only two problems with this latest COPA decision - Judge Reed’s unquestioning acceptance of the “harm to minors” rationale for censorship, and his enthusiastic endorsement of Internet filters. The first is understandable: courts have been assuming for years that minors must be shielded from pornography - or perhaps anything sexually explicit - even though in the CDA case, the Supreme Court acknowledged that lots of sexual content would not be harmful and might in fact be beneficial for kids.
The second problem - endorsing Internet filters - was probably a foregone conclusion given the Supreme Court’s latest opinion on COPA, but it was a questionable strategy for the plaintiffs. Delegating censorship decisions to private companies that are unaccountable and that use mechanistic filtering devices inevitably leads to a lot more censorship than could be accomplished by a criminal law. And filters work as a “prior restraint,” blocking speech in advance rather than punishing it after the fact.
The justification for relying on filters is that they’re only voluntary - parents don’t have to use them. But as we know from the unsuccessful litigation challenging CIPA - a law that mandated filters in schools and libraries that receive federal aid - voluntary easily becomes mandatory if the dangers of filters are soft-pedaled rather than clearly recognized.
For my report on the case, see http://www.fepproject.org/news/copadecision3-22-07.html