From a Comic Book Legal Defense Fund (CBLDF) news post:
The Comic Book Legal Defense Fund applauds yesterday’s Supreme Court decision upholding the ban on the Child Online Protection Act (COPA), a federal law which would have banned content providers from posting First Amendment protected “harmful to minors” materials online.
(The full article is posted below)
â€œThe Fund and our First Amendment allies see the decision as a key victory in the preservation of free speech in an online environment,â€ said Executive Director Charles Brownstein. The CBLDF has participated in challenges to COPA including both fights in the 3rd Circuit and both appearances before the Supreme Court.
Yesterdayâ€™s decision came down as a 5-4 split, with the majority declaring that the law probably does violate the First Amendment. Writing for the majority, Justice Kennedy stated â€œ[c]ontent-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid and that the Government bear the burden of showing their constitutionality.â€
â€œThere is a potential for extraordinary harm and a serious chill upon protected speech,â€ the majority asserted about COPA. It also held that the measures COPA proposes are probably not the least restrictive alternatives towards the goal of limiting minorsâ€™ access to overtly sexual material online.
While the court did declare the law was likely unconstitutional, it did not firmly dismiss it. The case has been sent the case back to a trial court where new factors will be considered, including the impact of the â€œDot Kidsâ€ domain and the Truth in Domain Names Act passed as part of PROTECT. New evidence can also be admitted reflecting the current status of blocking, filtering, and age-verification technology that could affect the courtâ€™s interpretation of whether COPAâ€™s remedies are the least restrictive towards its stated goals.
Though the court ultimately punted the case to a lower court, in a concurring opinion, Justice Stevens, joined by Justice Ginsberg, stated unambiguously his belief that the law is flagrantly unconstitutional. Stevens wrote, â€œCOPA is a content-based restraint on the dissemination of constitutionally protected speech. It enforces its prohibitions by way of the criminal law, threatening noncompliant Web speakers with a fine of as much as $50,000, and a term of imprisonment as long as six months for each offense. â€¦ And because implementation of the various adult-verification mechanisms defined in the statute provides only an affirmative defense, even full compliance with COPA cannot guarantee freedom from prosecution.â€
Stevens vindicated the position of many First Amendment advocates, including the CBLDF, stating, â€œCriminal prosecutions are, in my view, an inappropriate means to regulate the universe of materials classified as â€˜obscene.â€™â€ He added, â€œCOPAâ€™s creation of a new category of criminally punishable speech that is â€˜harmful to minorsâ€™ only compounds the problem. â€¦ Attaching criminal sanctions to a mistaken judgment about the contours of the novel and nebulous category of â€˜harmful to minorsâ€™ speech clearly imposes a heavy burden on the exercise of First Amendment freedoms.â€
Stevens concluded, â€œCOPAâ€™s criminal penalties are, moreover, strong medicine for the ill that the statute seeks to remedy. To be sure, our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. As a parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children’s viewing habits.â€
Speaking to CNN, Ann Beeson, the ACLU attorney who argued the case, said, â€œThere are many less restrictive ways to protect children without sacrificing communication intended for adults. By upholding the order stopping Attorney General Ashcroft from enforcing this questionable federal law, the Court has made it safe for artists, sex educators, and web publishers to communicate with adults about sexuality without risking jail time.â€
â€œThis is a welcome decision,â€ CBLDF Director Charles Brownstein concurred. â€œThe Court has upheld the ban on this unconstitutional law, permitting cartoonists and other creators of web content to exercise their First Amendment rights online. It has also asserted the importance of parents, not government prosecutors, in guiding the intellectual development of children. This is definitely a victory for the Fund, the free speech community, and all speakers who value their First Amendment freedoms online.â€