A Stitch in Haste

COPA is back in court:

Salon.com, Nerve.com and other plaintiffs backed by the American Civil Liberties Union are suing over the 1998 Child Online Protection Act. They believe the law could restrict legitimate material they publish online — exposing them to fines or even jail time.
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The law, signed by then-President Clinton, requires adults to use some sort of access code, or perhaps a credit-card number, to view material that may be considered "harmful to children." It would impose a $50,000 fine and six-month prison term on commercial Web site operators that publish such content, which is to be defined by "contemporary community standards."
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The U.S. Supreme Court has twice granted preliminary injunctions, including one in June 2004 in which it ruled 5-4 that the plaintiffs were likely to prevail.

That June 2004 injunction was Ashcroft v. ACLU, 542 U.S. 656 (2004) (also called "Reno II"). Indeed, COPA was an unconstitutional follow-up to the first unconstitutional version of Internet censorship, the Communications Decency Act of 1996, struck down in Reno v. ACLU, 521 U.S. 844 (1997) (also called "Reno I").

So after ten years, two administrations, two censorship laws and numerous lawsuits, the government simply will not capitulate and still refuses to acknowledge several remedial First Amendment principles:

--The government may not censor speech intended for adults merely because children might be exposed to it. Only "the least restrictive means possible" might — might — withstand judicial scrutiny. Butler v. Michigan, 352 U.S. 380 (1957). Accord, Sable Communications v. FCC, 492 U.S. 115 (1989). COPA's mandatory access code regime is hardly "the least restrictive" means possible (content filters are far less restrictive to the general population — as, of course, are parents).

--The "contemporary community standards test" of Miller v. California, 413 U.S. 15 (1973), applies to obscenity, and only to obscenity (and remember that "obscenity" does not mean mere "pornography," but something closer to "the most extreme hard-core pornography"). See also the repeated (and always unsuccessful) attempts to extend Miller to the sale of "violent" video games to minors.

--A law that is so vague that a reasonable person literally has to guess what it means and what conduct it prohibits is "void" as a violation of due process. How much more vague can you get than "harmful to children"?

Politicians and bureaucrats are so intrigued, and terrified, of the Internet that they simply will not accept the notion that it might be in any way protected from regulation. We saw it with the contemptible online gambling ban. We saw it fall victim to the warrantless wiretapping program. We saw it targeted for government monopoly municipal wi-fi proposals. And now we are seeing a desperate, indeed manic, drive to censor it, "for the children."

The Child Online Protection Act, or COPA, is codified as 47 U.S.C. §231.