Child Online Protection Act Unconstitutional
Posted: Wed Jul 23, 2008 10:56 am
Appeals Court Confirms: Child Online Protection Act (COPA) Unconstitutional
by: Tom Corelis
Yet another DOJ challenge ends in failure
A ban on the enforcement of COPA, the Child Online Protection Act, was upheld in the US Court of Appeals for the Third Circuit Tuesday, after agreeing with a lower court’s findings that the law was vague, overly broad, and unconstitutional.
The law, originally passed in 1998, was intended to protect children from objectionable content on the internet – pornography, namely – by forcing site owners to implement verifiable age checks. Critics feared that the law would result in the censorship of a wide variety of material on the internet – anything not suitable for a four-year-old, writes Wired – including the aforementioned pornography, as well as sexual health information or any site considered “obscene” by the courts’ principle of “contemporary community standards.”
“The First Amendment provides that ‘Congress shall make no law … abridging the freedom of speech, or of the press,” reads a passage from the decision (PDF). “COPA criminalizes a category of speech – ‘harmful to minors’ material – that is constitutionally protected for adults. Because COPA is a content-based restriction on protected speech, it is presumptively invalid and the Government bears the burden of showing its constitutionality.”
Part of the courts’ logic found that implementing filters on an individual basis was far more effective than criminalizing offenders. “Unlike COPA, filters permit adults to determine if and when they want to use them and do not subject speakers to criminal or civil penalties,” it wrote.
The challenge pitted the ACLU, acting on behalf of a variety of clients including the Salon.com, online sex magazine Nerve.com, the Sexual Health Network, and UrbanDictionary.com, against the U.S. Department of Justice and Attorney General Michael B. Mukasey.
Shortly after COPA’s passage in 1998, opponents moved quickly to successfully place a ban on enforcement. A federal appeals court upheld that injunction in 1999. A later petition to the U.S. Supreme Court in 2002 wound up against the government’s favor, and COPA enforcement remained blocked.
Further government challenges against the ban resurfaced in 2004, 2006, and 2007, and the question once again returned to the U.S. Court of Appeals, resulting with Tuesday’s permanent injunction and a wholesale striking down of the law. At one point, the government subpoenaed search records from Google, Yahoo, and others.
The ACLU lauded the Appellate Court’s 2008 decision as a victory for free speech. “For years the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional,” wrote the ACLU lawyer Chris Hansen in a statement. “The government has no more right to censor the internet than it does books and magazines.”
Officials at the Justice Department said they were less than thrilled, however. “We are disappointed that the Third Circuit Court of Appeals struck down a Congressional statute designed to protect our children from exposure to sexually explicit material on the internet,” said DoJ spokesman Charles Miller.
The government can, if it chooses to, challenge the decision once again by petitioning the Supreme Court.
by: Tom Corelis
Yet another DOJ challenge ends in failure
A ban on the enforcement of COPA, the Child Online Protection Act, was upheld in the US Court of Appeals for the Third Circuit Tuesday, after agreeing with a lower court’s findings that the law was vague, overly broad, and unconstitutional.
The law, originally passed in 1998, was intended to protect children from objectionable content on the internet – pornography, namely – by forcing site owners to implement verifiable age checks. Critics feared that the law would result in the censorship of a wide variety of material on the internet – anything not suitable for a four-year-old, writes Wired – including the aforementioned pornography, as well as sexual health information or any site considered “obscene” by the courts’ principle of “contemporary community standards.”
“The First Amendment provides that ‘Congress shall make no law … abridging the freedom of speech, or of the press,” reads a passage from the decision (PDF). “COPA criminalizes a category of speech – ‘harmful to minors’ material – that is constitutionally protected for adults. Because COPA is a content-based restriction on protected speech, it is presumptively invalid and the Government bears the burden of showing its constitutionality.”
Part of the courts’ logic found that implementing filters on an individual basis was far more effective than criminalizing offenders. “Unlike COPA, filters permit adults to determine if and when they want to use them and do not subject speakers to criminal or civil penalties,” it wrote.
The challenge pitted the ACLU, acting on behalf of a variety of clients including the Salon.com, online sex magazine Nerve.com, the Sexual Health Network, and UrbanDictionary.com, against the U.S. Department of Justice and Attorney General Michael B. Mukasey.
Shortly after COPA’s passage in 1998, opponents moved quickly to successfully place a ban on enforcement. A federal appeals court upheld that injunction in 1999. A later petition to the U.S. Supreme Court in 2002 wound up against the government’s favor, and COPA enforcement remained blocked.
Further government challenges against the ban resurfaced in 2004, 2006, and 2007, and the question once again returned to the U.S. Court of Appeals, resulting with Tuesday’s permanent injunction and a wholesale striking down of the law. At one point, the government subpoenaed search records from Google, Yahoo, and others.
The ACLU lauded the Appellate Court’s 2008 decision as a victory for free speech. “For years the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional,” wrote the ACLU lawyer Chris Hansen in a statement. “The government has no more right to censor the internet than it does books and magazines.”
Officials at the Justice Department said they were less than thrilled, however. “We are disappointed that the Third Circuit Court of Appeals struck down a Congressional statute designed to protect our children from exposure to sexually explicit material on the internet,” said DoJ spokesman Charles Miller.
The government can, if it chooses to, challenge the decision once again by petitioning the Supreme Court.