COPA will die like CDA did
Saturday March 8, 2003 at 11:53 am
You may remember back in 1997 when the US Supreme Court struck down the Communications Decency Act (CDA) as unconstitutional. The CDA was Congress' first attempt to crack down on Internet pornography. As if it were the first time they had to write a law that would fit within Constitutional guidelines, the CDA was so blatantly unconstitutional that it failed to pass the test during its first court challenge.
Congress followed that failure with the adoption of the Child Online Protection Act (COPA) in yet another attempt to isolate and more tightly control access to Internet pornography. From the looks of it, they may have failed to consider the Constitution on this one as well.
You may remember that in 1999, the 3rd US Circuit Court of Appeals in Philadelphia took their first shot at COPA by determining that its use of "community standards" as the determining factor on what may or may not be legal was imply too broad to pass Constitutional tests. Claiming it clearly infringed upon First Amendment rights by not defining what was truly against the law meant that content clearly legal in a liberal community could equally be considered illegal in a more conservative community.
I thought this was equally disconcerting and troublesome, but the US Department of Justice, desperately trying to save the new law after facing such a scathing defeat on the CDA, appealed to the US Supreme Court. After careful consideration, the Supreme Court decided in 2002 that the 3rd Circuit Court's decision on the community issue was an insufficient argument against the law. The majority opinion wrote, "If a publisher chooses to send its material into a particular community, this court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the nation."
I found this to be a cheap excuse for not eviscerating a law which is clearly unconstitutional. Despite what I thought was a clear case, the Supreme Court remanded the case back to the lower court for further consideration and clarification.
Instead of attacking COPA from the same perspective in the face of a majority (although not unanimous) defeat, the 3rd Circuit Court took their second swing at COPA using a significantly more exhaustive approach, albeit still based on infringement of First Amendment rights.
COPA "is not narrowly tailored to proscribe commercial pornographers and their ilk, as the government contends, but instead prohibits a wide range of protected expression,” the court said. "COPA will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial. People may fear to transmit their personal information, and may also fear that their personal, identifying information will be collected and stored in the records of various Web sites or providers of adult identification numbers.”
In declaring the law unconstitutional for a second time, the Circuit Court is forcing the Justice Department to once again appeal to the Supreme Court if they wish to continue defending COPA. Although this is likely, I believe (and hope) that the Supreme Court will not be so lenient with the law during a second appeal. Given the law's excessive burden on providers and consenting adults to clearly violate their own privacy and to infringe upon their First Amendment rights, it seems clear to me that the 3rd Circuit Court's decision will be more difficult to circumvent a second time.
jason
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