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Court defends America's right to online smut

First Amendment meets Groundhog Day

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Ten years after it was rubber stamped by US lawmakers, the free-speech-throttling Child Online Protection Act (COPA) remains in legal limbo, but its chances of survival took another blow this week as a federal appeals court upheld an earlier ban on the statute.

“COPA cannot withstand a strict scrutiny, vagueness, or over breadth analysis and thus is unconstitutional,” reads Tuesday’s ruling (PDF) from the U.S. Court of Appeals for the Third Circuit. The 1998 statute threatens six months of jail time — and hefty fines — for any American who posts “material that is harmful to minors” on the net.

Soon after COPA was passed, the American Civil Liberties Union (ALCU) mounted a challenge on behalf of several free speech crusaders, including the online mag Salon.com, the American slang archive UrbanDictionary.com, and the self-explanatory Sexual Health Network. “The law makes it a crime to engage in speech that is harmful to minors — and that is by definition speech that is protected for adults,” Chris Hansen, senior staff attorney with the ACLU First Amendment Working Group, tells The Reg.

If the law is enacted, the likes of Salon would be forced to either avoid speech that may be harmful to minors — including sexual discussions — or put that speech behind a credit card log-in. A credit card log-in may or may prevent minors from reading — but it would certainly chase away adults. “No one wants to give their credit card number when reading free content,” Hansen says. “The net effect is that this would stop a lot of free speech that everybody agrees adults are entitled to read.”

The COPA case has already reached the Supreme Court twice, and it may be in line for a third visit.

In June 2004, the Supremes upheld a district court decision that COPA violates the First Amendment to the US Constitution, which protects free speech. But they sent the case back to the lower court, asking it to consider whether six years of technological change had affected alternative means of shielding minors from sexual content.

The ACLU has always argued that net filtering is the better option. “Filtering technology isn’t just less onerous. It’s more effective,” Hansen says. “[COPA] would only cover domestic web sites, but about half of all web content comes from overseas.” But the Supremes wanted to know if such technology was still up to the task.

In March of last year, the district court ruled against COPA yet again. But the Department of Justice appealed. Again. And now a federal appeals court has banned the statute. Again. The DoJ may or may not ask the Supreme Court to hear the case for a third time. And the Supremes may or may not agree to.

The DoJ did not respond to our request for comment. But department spokesman Charles Miller tells the AP, “We are disappointed that the court of appeals struck down a congressional statute designed to protect our children from exposure to sexually explicit materials on the Internet.”

Odds are, the department will indeed toss COPA back to the Supremes. ®

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