The Child Online Protection Act, the six-year-old Web-policing legislation that has seen numerous legal challenges, was handed another setback last week when the U.S. Supreme Court upheld an injunction against it and sent the case back to the Federal District Court in Philadelphia for a new trial.
Similar to an earlier ruling, the court didn't say the law was unconstitutional. But in a 5—4 decision, it found that COPA, which puts the onus of responsibility on Web operators by making them criminally responsible if children view adult material on their sites, places an unfair restriction on adult speech and therefore could not be enforced. "There is a potential for extraordinary harm and a serious chill upon protected speech," Justice Anthony Kennedy wrote for the majority; filters "impose selective restrictions on speech at the receiving end, not universal restrictions at the source."
The law, which calls for the imposition of heavy fines, has never taken effect. The Supreme Court did leave open a window for the law. If the alternative methods—mainly filters—could be demonstrated as less effective than a legislative instrument, then the law could be upheld.
The Supreme Court ruling follows the pattern of the Third Circuit, whose most recent finding also concluded that the law was an unfair restriction on adult speech. (Its initial finding, which the Court rejected, was that the Internet could not have one community standard established). It also provided one more chapter in what is a seemingly endless battle—a battle that may not be over yet. The issue of whether the law is overbroad, for instance, is a separate constitutional concern and has yet to be taken up by the Supreme Court.
Free-speech advocates were heartened by the decision. Chris Finan, director of the American Booksellers Foundation for Free Expression, said he believed the new court mandate of proving law works better than filters will be challenging for the government. "They [the government] will have a hard time overcoming the fact that this law only applies to U.S. [based] sites, and it may not prevent kids from as much as 40% of the explicit stuff that's on the Internet," Finan said. The ACLU, which litigated the case, couldn't be reached for comment.
The AAP sounded an equally enthusiastic note and said that, though the law is in for another legal round, the organization couldn't have hoped for much more. AAP's Judy Platt said, "We would have loved for them to strike it down on its face. But the case went up on the question of the preliminary injunction" and the question of whether this was an effective way to monitor adult content, "and they said, very resoundingly, 'no.' "
The case will go to the Third Circuit and then, most likely, back to the Supreme Court. But the law's opponents remain optimistic. "The government's window of options is narrowing," Finan said.
