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Supreme Court Kills COPA

Attorneys weigh in on demise of Child Online Protection Act

Supreme Court Kills COPA

WASHINGTON, D.C. - It was just a one-line reference in today's Orders list from the U.S. Supreme Court, under the heading "Certiorari Denied": "08-565 MUKASEY, ATT'Y GEN. V. ACLU, ET AL."

But what it meant was that the Child Online Protection Act, better known simply as COPA, signed into law by President Clinton in 1998 but never enforced due to injunctions issued by the Third Circuit Court of Appeals, would never take effect.

The last ruling on COPA was made on July 22, 2008, when a Third Circuit panel affirmed the trial court's decision that COPA was unconstitutionally vague and overbroad, and that technology had advanced to the point where end-user filtering software was a relatively effective method of protecting minors from exposure to sexually explicit materials - and in any case, a less restrictive method than the government had proposed in the original COPA legislation. (See our earlier story, Third Circuit Strikes Down COPA .)

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"I'm actually a bit surprised - pleasantly surprised, but a bit surprised," attorney Reed Lee told AVN. "A federal statute is something the Supreme Court takes seriously and when a lower court invalidates it, there's a better than average chance that that case is going to get a full review by the Supreme Court. Here, it may in fact be that they've seen it twice on preliminary injunctions, they were familiar with it, they may have the view that they gave the appropriate analysis to the lower courts, and now they may look at it and say, 'The lower court did a good job with the analysis we've articulated.' So it's not unheard of, but I'm mildly surprised but very pleasantly so, especially because the trial court did such a good job in terms of fact-finding that I believe the record was just a superb record to stand up on appeal. So what uncertainty there was over COPA is now gone."

But while that law is no longer hanging over adult webmasters' heads, the topic itself may return, and possibly in short order.

"I don't think this is the last we'll hear of this," said First Amendment attorney and AVN columnist Clyde DeWitt. "The ability of children to access adult material on the Internet is a very sensitive topic in Washington, largely because it's an important issue to a lot of voters, so we will see something. With this administration, however, I think we will see something that makes more sense, like the government somehow participating in the filtering process, since after all, the court said filters work better than federal laws."

What form those new laws may take is unclear, but it seems likely that the Justice Department under Attorney General Holder will advise legislators just what methods were struck down by the Third Circuit - a complete ban on "material harmful to minors" posted "for commercial purposes" - and attempt to help them craft new laws that don't infringe on constitutional liberties - if in fact that is possible.

"I think it's pretty clear that whatever Congress does to try to 'protect kids on the Internet' is going to have to square with the constraints imposed by the First Amendment in favor of free speech," Lee warned, "and in fact some of the Court's analysis can guide Congress. In particular, in one of the COPA decisions - I think COPA II - Justice Kennedy said, 'Look, there's a constitutional difference between filtering expression at its source, where it's filtered for everybody, or at the destination, where the filtering can be tailored to the specific recipient; in this case, a family with kids.' I think what Congress is going to have to take seriously from now on is, to the extent that Congress wants to promote filtering, it is on much safer constitutional ground doing things that promote end-user filtering - that is, filtering that is controlled at the end of the stream by a parent, or for that matter by an adult who would just prefer not to see naughty bits splashed on the screen - so that if Congress proceeds in ways that make it possible for end users to filter or block unwanted email spam that's pornographic or to set up the computer so that when their kids are on and they don't know the special password, they don't get sexually explicit material, all of that is the constitutionally preferred way of going about it."

One possibility is, Congress could authorize a coupon program for parents who wish to buy software filters, similar to that currently being used to help citizens bridge the changeover from analog to digital TV - but even that may not be necessary.

"Yeah, that's one possibility," Lee said. "I mean, if they want to somehow subsidize or have a little tax credit if people are forced to buy end-user filters - but in the long run, end-user filtering is not particularly expensive, and it can be developed and marketed as a mass-market product because there are millions of people who will use it, so in the end, the cost burden shouldn't be that high."

But what if Congress decides that it simply must try to craft one more law to "protect the children," as it did with the Communications Decency Act, whose unconstitutionality led to COPA, as well as later efforts like the Children's Internet Protection Act (CIPA) and the PROTECT Act?

"When the Republicans were in control of Congress, their solution was always, 'Pass a law against it'," DeWitt noted, "but it seems to me that this administration might be willing to listen to us for a change."

"I think that this is an instance," he continued, "where it would be a good idea for the industry to go to the Department of Justice, because Congress will eat whatever the Department of Justice feeds them in this area, and suggest some concrete way of going about this that's industry-friendly but also child-friendly, and there are people involved in the online industry who are very, very good at computers and very, very knowledgeable about filtering and such things. It seems to me that the Free Speech Coalition and ASACP should join forces and come up with a proposal and go to Justice and say, 'Look, this is what would work and what the industry would find acceptable, and anything else you try is going to get thrown out by the courts,' and just maybe we'll come out with something that will do the babysitting."

It wouldn't be the first time the industry has approached Congress to help it regulate the adult areas of the Web. In January of 2006, attorney Paul Cambria testified before the Senate Commerce Committee that the industry would be willing to work with Congress to come up with an acceptable system ... which led the committee's chairman, Sen. Ted Stevens (R-AK), to threaten, "Well, my advice, you need to tell your clients they better do it soon, because we'll mandate it if you don't."

But Stevens wound up with more pressing problems to worry about, and his party no longer holds the power in Washington.

"Republicans are now in the minority in both Houses, and the White House now houses a Democrat," DeWitt observed, "so maybe we should remind them that we proposed that before and that we actually have something concrete for them that we'd like to talk to them about it, and I think if we made enough of a publicity splash about it in the way of press releases and so forth, they would feel compelled to listen. We're saying publicly, 'Look, we're going to Congress and to the Department of Justice with a proposal to protect children from inappropriate online materials, and we'd like it if they would consider our proposal and talk to us, and if they don't' - Well, they almost have to; they're forced into a political situation where they have to, and as the adult industry's representatives, we have an audience in Washington that will no longer say, 'Well, just go stuff it. You guys are the porn industry and we don't even recognize that you exist.' I think it's worth a try."






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