A Stitch in Haste

Fifth time's a charm?

A federal judge on Thursday dealt another blow to government efforts to control Internet pornography, striking down a 1998 U.S. law that makes it a crime for commercial Web site operators to let children access "harmful" material.
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The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age.
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The 1998 law followed Congress' unsuccessful 1996 effort to ban online pornography. The Supreme Court in 1997 deemed key portions of that law unconstitutional because it was too vague and trampled on adults' rights.

The decision is pretty much as I predicted. The judge ruled that the Child Online Protection Act is both overinclusive and underinclusive and therefore patently fails the "narrowly tailored" requirement for infringing First Amendment speech. Moreover, the judge found COPA to be unconstitutionally vague and overbroad.

Bottom line: Activist legislators, both in Congress and the states, repeatedly try to "borrow" the obscenity test of Miller v. California, 413 U.S. 15 (1973). But they also repeatedly ignore the pesky little detail that "obscenity" is a very specific legal term of art, best described as "XXX-rated hard-core smut." Speech that is not "XXX-rated hard-core smut" is protected by the First Amendment, whether it is harmful to children or not, and the government must meet the most demanding scrutiny in order to restrict it. Mere nudity, mere foul language, mere violence, even mere sex is not "obscenity" and cannot be casually punished or censored, Miller notwithstanding. Stated differently, it is well-settled law that the government may not restrict adult access to speech simply out of fear that children might see it too.

Meanwhile, this latest in a long string of defeats for the government is also a political defeat, in the sense that conservatives will soon be unable to exploit it as a tool with which to pander to their base. Much like "banning same-sex marriage," "banning Internet indecency" is running out of gas — and hopefully will be fully and finally quashed before the 2008 election.

Assign the duty of protecting kids to parents. Leave the rest of us alone.

The case is ACLU v. Gonzales, No. 98-5591 (E.D. Penn., March 22, 2007) (PDF - 84 pages).