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learning.now: at the crossroads of Internet culture & education with host Andy Carvin

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July282008

Appeals Court Smacks Down COPA

Last week, a federal appeals court ruled against the constitutionality of the Child Online Protection Act, or COPA, a law passed in 1998 to prevent minors from accessing harmful Internet content. It’s a major victory for free speech advocates who felt the act was poorly conceived.

The fight over the government’s role in protecting minors online goes back to the mid 90s, when Congress passed the Telecommunications Act of 1996. Within that law was a provision known as the Communications Decency Act, or CDA. The CDA required Internet content providers from knowingly transmitting indecent or obscene materials to minors. While courts had previously acknowledged that obscene materials could be restricted, indecent materials were a different matter. Free speech advocates filed suit against the law, arguing that things such as medically information or art could be deemed arbitrarily as indecent, and the law would create a chilling effect towards free expression.

Eventually, the Supreme Court rejected the CDA unanimously, forcing supporters of the law to go back to the drawing books. Their response to the Supreme Court was a new piece of legislation, COPA. Passed by Congress and signed into law by President Clinton in 1998, COPA took a different tack, requiring commerical providers of “material harmful to minors” to restrict access to that content to adults only.

The COPA was now the law of the land, a court ordered the government not to enforce it until the judicial system could rule on its constitutionality. The case has gone up and down the system like a game of chutes and ladders over the years, as the Supreme Court upheld the injunction four years ago, noting it was probably unconstitutional and should be examined by a US district court. That finally happened in 2007, when District Judge Lowell Reed Jr. struck down COPA, citing that it violated both the First and Fifth Amendments.

But the saga didn’t end there, as the federal government appealed Judge Reed’s decision - which brings us to last week, when The 3rd U.S. Circurt Court of Appeals reaffirmed Reed’s ruling to strike down COPA. As Wired magazine noted, the appeals court felt that the what might qualify as material harmful to minors was “were so loosely defined that any content not suitable for a four-year-old would have been hidden behind a age-verification firewall.”

Additionally, the court took note at the evolution of filtering software since the law was first proposed in the 1990s. “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,” they wrote.

Free speech groups applauded this week’s decision. “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,” said Chris Hansen, Senior Staff Attorney with the ACLU First Amendment Working Group. “The government has no more right to censor the Internet than it does books and magazines.”

It’s quite likely that the justice department will try to escalate the ruling all the way back to the Supreme Court. Only time will tell whether they succeed, but given their track record so far, it’s likely going to be a tough sell. -andy

Filed under : Policy

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