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Supremes defend American net smut (yet again)

COPA still dead

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The Child Online Protection Act is still dead.

Today, Bloomberg reports, the US Supreme Court upheld an earlier ban on the infamous free-speech-throttling statute, snubbing an appeal from the now-defunct George W. Bush administration.

Passed by Congress in 1998 - but never enacted - COPA threatens six months of jail time and hefty fines for any American who uploads net material "harmful to minors."

Without additional explanation, the Supremes seconded a July ruling from the US Court of Appeals for the Third Circuit. "COPA cannot withstand a strict scrutiny, vagueness, or over breadth analysis and thus is unconstitutional,” was the word from the lower court.

This is the third time the Supremes have ruled against the statute.

Soon after COPA was rubberstamped by Congress, the American Civil Liberties Union (ACLU) mounted a legal challenge on behalf of numerous free-online-speech crusaders, including online mag Salon.com, American slang archive UrbanDictionary.com, and the sexual-health-obsessed 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, told The Reg.

The statute would force American websites to avoid material that appeals to "prurient interest," depicts "an actual or simulated sexual act or sexual contact," and "lacks serious literary, artistic, political or scientific value for minors" - or at least hide such material behind a credit card log-in.

Neither is a viable option, according to Hansen. "No one wants to give their credit card number when reading free content," he says. "The net effect is that this would stop a lot of free speech that everybody agrees adults are entitled to read."

Hansen and the ACLU argue for net filters instead. "Filtering technology isn’t just less onerous. It’s more effective...[COPA] would only cover domestic web sites, but about half of all web content comes from overseas.”

In 2004, the Supremes backed the ACLU, upholding a district court decision that COPA violated the First Amendment to the US Constitution, the amendment that protects free speech. But the Supremes sent the case back to the district court, asking whether current net filters could adequately protect minors from sex talk.

In March 2007, the district struck down COPA again. The Department of Justice appealed, but its appeal was denied by the appeals court for the third circuit.

Then the Bush administration appealed again, arguing that half of all US homes don't use net filters. "Filters alone are not an alternative at all, much less a more effective one," it said.

But the Supremes stood their ground. The highest court in the land also tackled COPA in 2002, when it fought off a separate legal defense of the law. ®

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