The battle to keep Internet-based content free from the chilling effect of governmental restrictions has evolved into a kind of judicial trench warfare.
The fight over the constitutionality of the Child Online Protection Act (COPA), a misguided law intended to shield children from inappropriate content online, is now in its ninth year; the law has twice touched the Supreme Court only to be sent back to the lower courts with instructions to buttress its legal footing.
A week's long trial in the fall of 2006 again found COPA unconstitutional; the district court also granted a permanent injunction against Copal's enforcement. Although District Judge Lowell Reed agreed with the principle thrust of COPA, that protecting children from sexually explicit Web content is a compelling government goal, he also held that the government's proposed solution was overly broad and failed the strict scrutiny demanded off any law attempting to collar the tenets of the First Amendment.
Yet like lions in the tall grass, government lawyers immediately jumped once again to appeal to the case to the Third Circuit, as if their flawed justifications in support of COPA would somehow morph into something more acceptable to the judicial palette. CDT filed a "friend of the court" brief on behalf of itself and 17 other groups urging the appeals court uphold the permanent injunction. If COPA were allowed to stand, the chilling effect on Internet content would reduce online speech to a dialog little more robust than the script for Mr. Rogers' Neighborhood.
Actually, this case seems more like we're fighting the Hydra; as soon as we cut off one head, it grows another, only more bizarre and twisted than the first. Each new appeal is an occasion for presenting new legal justification for the law, none of which have swayed the court or provided any meaningful shield to keep children from a glimpse of adult oriented content. All the government money and resources that have been poured into COPA would have better been used for programs that educate children on Internet safety and media literacy, but instead, the government continues to defend an indefensible law.
The government contends that COPA is limited to "commercial pornographers," a conclusion soundly denounced from the bench. "COPA's reach [is] beyond those enterprises that sell services or goods to consumers" and extends to "those persons who sell advertising space on their otherwise non-commercial web sites," the court has said. For example, COPA would ensnare the following Internet content:
- An online bookstore's or book publisher's Web site that contains quotes from its books or catalog, including from textbooks about human sexuality.
- A recording retailer's Web site that includes clips of songs or videos containing sexually-oriented material.
- A medical Web site that carries and is supported by advertisements and that provides "safe sex" information.
- An online dictionary that includes definitions of various sexual practices.
- Search engines that provide hyperlinks to Web sites that include information about safe sex practices, sexual education, and other sexual content.
Judge Reed also affirmed that other methods available to keep children from accessing sexual content, such as filtering software, provide more effective protection and impose less restrictions on adults' First Amendment rights.
And if those legal hurdles aren't enough to stumble this law, there's this little, inconvenient fact that there is no way to adequately enforce it. Because the Internet is a global enterprise, there is no sound, legal argument that other countries would be held content posted in other countries should be held accountable under COPA. Indeed, if COPA applied to other countries, domestic content providers would suddenly become targets of other countries efforts to criminalize content that is both legal in the U.S., and accessible abroad.
Like fighting the Hydra, dealing with Internet-based content that is inappropriate for kids is simply a messy, and all too often, emotionally charged issue. Parents need to do the heavy lifting here, educating their children on what is or isn't appropriate, based on their own family values, and using content filters, and other software tools to guide their children's online activities.
The government, its good intentions notwithstanding, is handcuffed to a "one-size-fits-all" solution for protecting children online But it's a global village now and promise of instant Internet-based communications is too powerful to stifle under the flawed rubric of COPA.