Comments on: A Good Week for Free Expression http://blog.cdt.org/2007/03/27/a-good-week-for-free-expression/ Digital Policy in Process Wed, 27 Aug 2008 23:27:03 +0000 http://wordpress.org/?v=2.6 By: margeheins http://blog.cdt.org/2007/03/27/a-good-week-for-free-expression/#comment-2498 margeheins Sun, 01 Apr 2007 20:00:44 +0000 http://blog.cdt.org/2007/03/27/a-good-week-for-free-expression/#comment-2498 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 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

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