Topic: COPA before Supreme Court   (update on COPA case)

 Posted by me 22 July 2001 12:50 on the discussion forums of Independent Gay Forum  (“Discrimination, Free Speech and Military ” thread)                     

 

                 In late May, the Supreme Court accepted cert. on an appeal  from the DOJ on the Preliminary Injunction (issued in Feb 1999) against enforcement of the Child Online Protection Act of 1998.

                Under Electronic Frontier Foundation (http:/www.eff.org) I am one of the sub-plaintiffs. The case is generally known as ACLU v. Reno II and now ACLU v. Ashcroft.

                My latest understanding is that briefs are due in August or September, and that oral arguments could occur in the fall (perhaps late), and that decision could occur early in 2002. The decision technically could order the District Court to hold a full trial.

                 I submitted my affidavit in Dec. 1998 and play no direct part in the papers now (I may attend the arguments if possible). However, I wanted so summarize a few of the possibilities.

                 The Court could uphold the Preliminary Injunction, in which case it become permanent. It could, however, vacate it. My guess is that this would result in a new trial on merits. I am NOT certain at this point as to whether the Court can rule on the constitutionality of the law in a conventional opinion when there has been no formal  trial on merits. (Someone else could comment on this point.)

                 The underlying concepts of litigation include the strict scrutiny given to First Amendment claims and the analysis of whether COPA provides the least restrictive means available to achieve a permissible state goal (in this case, the protection of minors).  Another important element is that COPA, as written, applies only to commercial enterprises (that is, entities selling any products or  services) and not to individual speakers on the Net whose speech  is not associated with any commercial motive (as had the CDA).

                 The Preliminary Injunction issued by Judge Reed emphasized the technical unreliability or unfeasibility of the age verification schemes (adult id's or credit cards) proposed by COPA. An  important point is that any adult verification scheme would drive away traffic for material intended to be free, and containing  non-obscene, constitutionally protected and potentially valuable material (such as risk reduction in safer sex with respect to STD  transmission, for example).

                The opinion offered by the Third Circuit in June 2000 emphasized the topology of the Internet and www, both geographically and the way elements may be perceived for redeeming social value according to community standards. With this analysis, COPA seemed to fail for over-breadth, much as had the earlier CDA in 1997.

                 Most defenders of COPA (from the "conservative" side) have  emphasized notions like, "harmful to minors" is a well-understood  notion in case law and in many states, and is usually  implemented in places like gay book stores (by separating pornography physically) with little controversy. Defenders usually claim that COPA essentially aims at free pornographic teasers, intending to advertise to an adult customer but incidentally viewable by  children. Defenders claim that COPA did not intend to limit legitimate political or social discussion in unrestricted web sites. This would mean that most plaintiffs (including me) did not have material legally harmful to minors and therefore did not have standing to sue. While it is possible that the Supreme Court could  uphold this line of reasoning, the plaintiffs have cogently pointed out that Congress went to the trouble to write a new definition of  "HTM" in the COPA statute itself, and that therefore the wording in the statute must be interpreted on its face.

                 And this wording is troubling. It could be interpreted as applying  to "all minors." Therefore a piece of writing would have to be non-prurient and have social value to an eight-year-old to be legally available in an unrestricted space from a commercial source (whereas it would have been valuable and non-prurient to a mature 6-year-old).  Or, it could be interpreted as meaning “older minors” but allow prosecutors some discretion in assessing what the public generally considers acceptable material for older minors. There is some controversy over whether the wording of the “serious value” prong in the statute overrides the usual meaning of “community standards.” 

                 This, to me, implies that the commercial nature of a particular  site would be a critical element in any litigation or prosecution (by the government) coming from COPA. As a whole, the First Amendment (in case law) does give considerable protection to "commercial speech" (advertising, for example) as well as individual speech or other normal democratic political participation. There are some threshold limitations or interpretive differences, however, as in copyright "fair use" and in applying the right to publicity. A point of controversy would be the interrelationship between an intellectual property's commercial presentation (its ability to make money now or at some prospective point in the future) and its effect on political or social debate. Conceivably, one could argue that a commercial interest should have the economic scale to practice whatever due diligence is required to protect minors, and  that, as a result, no one could present adult subject matter (such  as the kind of psychological details underneath the  gays-in-the-military debate)in unrestricted pages on the web if  that discussing that subject matter is somehow associated with  (the author's) possible future commercial gain (as is, I believe, the case with me). That is what concerns me the most.

            The Court will have to address two paradigms of argument—first, what does the law really mean, and then, given what the Court thinks it means, is it constitutional (or would a challenge in a full trial succeed on its merits)?

The main sites with repositories on the litigation are

                http://www.aclu.org

 

                (look under cyberliberties)

                http://www.eff.org

 

                I summarize my own view and affidavit at

                http://www.doaskdotell.com/content/colpa.htm

 

                There is also a tangential concern in the insurance industry.

                National Writers Union

                http://www.nwu.org

 

                has been trying to offer a lower cost media perils insurance to writers and found that adult material cannot be insured. It was supposed to be OK if it had "redeeming social value" but my own  application was declined at it appears (from all circumstantial  evidence) as though my involvement in the COPA challenge was the major factor.

 

            Imagine that Congress tries to pass a law requiring a “Chinese wall” for speakers who put adult subject matter on the Internet in areas reachable by minors, not allowing adult subject matter to be posted by entities with any commercial interest whatsoever.  But I am getting at the (potential) problems with internet  censorship law, conflict of interest, insurance issues, and legal risks of often subjective character that are inherent when someone offers a large amount of intellectual property to the public and is  not yet ready to make it work financially, but has an incentive to  do so in the future.  Isn't this "the American way"? 

 

©Copyright 2001 by Bill Boushka, subject to fair use. Questions, email me at JBoushka@aol.com  to hppub home page

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