Supreme Court Rules on Challenge to COPA

Publiux writes: "LawMeme is reporting today that the Supreme Court upheld portions of the Child Online Protection Act because using community standards to determine what could be harmful to minors was not overly broad and thus not unconstitutional. Before you stop spreading your 'sexually explicit material' online, a lower court still has to determine if the law is unconstitutional for other reasons." Snibor Eoj submits this link to coverage at Yahoo! as well. Other readers link to AP coverage running at NandoTimes and the decision itself (PDF).

So now the question is...

Will the FBI try to have foreign parties prosecuted for violating COPA? After all, it works for DMCA and with COPA they only need to have a website that can be accessed from a US IP, they don't need to be offering any services.

For those of you too lazy or ignorant...

...to read the articles, here's the gist:

Supreme Court rules that using a law using 'community standards' does not mean its automatically unconstitutional.

That's it. They then sent the case back to the lower court to try unconstitutionality on other merits.

This was a very limited ruling, and the government is still barred from enforcing the law.

This isn't much of a news story...

not very troubling?

At first blush, this is scary. I thought, "You mean limiting speech is okay as long as it's not 'overly broad'?" But then I reconsidered.

Before you mod me down, read what I have to say. True, it deviates from the standard sheepbot formula, but I'm trying to reason through this objectively.

First, our right to speech is granted (i.e., it is not presumed) by the Constitution, a document that has weathered the test of time and provided the foundation for the civilized modern world. Therefore, this speech is colored by the other contents of the Constitution, including the possibility of limiting "Such Speach as may be Found Hurtful to the Citizens of the Nation." I think this falls into the "hurtful" category pretty clearly.

I'm not going to argue against this. Our children are too precious to sacrifice them at the altar of free speech.

Re:not very troubling?

The single largest problem with your argument is that the constitution itself * explicitly * states that rights are *not* granted but are presumed.

In fact, this is the single fundamental point at the center of all American law and politics and if you don't understand that you understand nothing of our legal society.

What's more, the constitution is document that not only reserves *all* rights to the people but exists almost entirely to define the *restrictions* on the action of the government, *not* the people!

KFG

Send 'em back to school

Send them back to school.. because they are obviously unable to read:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

First Amendment

So the Supreme Court thinks that "free speech" means "free if the majority of the populace likes it or agrees with it" (community standards). Isn't the First Amendment sort of nullified by a reading like that? If you're not allowed to make a statement or produce an artwork (including photographs) that the general populace doesn't agree with, then your speech isn't really free. It's just allowed or banned under the will of the government, which is the sort of situation that the original constitutional amendments were meant to put a stop to.

Re:First Amendment

If you actually read the law, you'll notice that it uses a Miller-style test for determining "harmful to minors", which requires that a work "taken as a whole lacks serious literary, artistic, political or scientific value for minors".

Hence, picture of the nude Statue of David -- fine. Print of Venus de Milo: fine. Bestiality pictures on basketballs inside a fishtank: hmmm, no.

So where do we find this "community"...

It's interesting to see how poorly understood the Internet is to the justices. The terminology is the same as if they were using "local community standards" to determine if a strip club should be allowed. That works when you are talking about a place with physical presence, but are we now going to apply the "local community standards" of some enclave of rich religious puritans to every internet user? I'm a member of a church who's "community standards" would reject most PG-13 movies (and in fact has specially edited versions of popular movies made to prevent the members from fleeing to R rated movies and "corrupting" themselves).

Let's hope that subjecting those who did not agree to a strict "community standard" themselves to the harshest that can be found turns this around...

Tricky call...

I think that the judge's here (regardless of you personal opinion on censorship) are facing a rather tough challenge. The majority of people do NOT support child-porn, no matter what the circumstance (thankfully). However, it is not really within the realm of judges, IMO, to decide what constitutes offensive material.

The crux of the problem lies in just how much "censorship" they should support, while at the same time retaining some amount of control over what is morally acceptable. If they censor too much, they set a dangerous precedent which future generations of pro-censorship "moralists" may use as a weapon. If they don't support it at all, you leave some portions of the populace (children, in this case) defenseless against a heinous and perturbing crime. Worse, because of its ambiguous nature, any substance akin to child-porn is under fire. Not only must the judges weigh in the protection of children and censorship issues, they must ensure that no solution is too extreme.

My point? This is a tough call, so one should not rant to vigourously against the judges. I am anti-censorship but also anti-childporn...where does the line get drawn?
----------rhad

Opinion is posted on the Supreme Court site

The Supreme Court site has the opinion posted [supremecourtus.gov]

Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

Misleading headline... big suprise

Held:COPAs reliance on community standards to identify what material is harmful to minors does not by itself render the statute substantially overbroad for First Amendment purposes. The Court, however, expresses no view as to whether COPA suffers from substantial overbreadth for reasons other than its use of community standards, whether the statute is unconstitutionally vague, or whether the statute survives strict scrutiny. Prudence dictates allowing the Third Circuit to first examine these difficult issues. Because petitioner did not ask to have the preliminary injunction vacated, and because this Court could not do so without addressing matters the Third Circuit has yet to consider, the Government remains enjoined from enforcing COPA absent further action by the lower courts. P. 22.

Basicly the supreme court ruled against the ACLU's argument that the "community standards" were unconstitutional, but left the rest up to the lower coutrs to decide. This may bounce back to the supreme court at a later date, but for now it's been repremanded back to the federal circuit.

The injunction is still in place which means that the law cannot be enforced currently.

Why it's a slippery slope

Readers of the Congressional Register will recognize the following future threats to free speech and free commerce online, which had been held up in committee until the Supreme Court ruled on the COPA:

• H.R. 4239, which makes it a felony to distribute any kind of sexually explicit material to a user who does not register with a government-sanctioned age verification service (like AdultCheck).
• H.R. 4551, which outlaws the creation and distribution of "electronic burglary devices" such as system cracking scripts and port scanners.
• H.R. 4608, which taxes all sales of goods over the internet that originate overseas.
• H.R. 4277, which requires all ISPs to keep 6 months of records of all user activity and give law enforcement access to the records without a court order.

The list goes on. Naturally most of these will never become law, but statistically at least a few are likely to pass and make the internet that much more repressive. It's high time to vote Libertarian [lp.org] and try to preserve the few remaining liberties we actually have in this country.

Chilling effect

It was disappointing that the Court did not rule on what "community" can be used to measure the community standards.

In particular, we know that there have been strategic efforts to prosecute purveyors of "adult" materials in the "least tolerant" communities.

Since it is technically impossible to know what community a web visitor is in (thanks to AOL and other proxy servers), the end result is simple: nobody can offer ANY "adult" materials to anyone in the world, unless those materials are acceptable under the community standards of the most conservative community in the United States.

The real goal, of course, is not to prosecute violations of this law -- it is to create a system that strongly deters creation or distribution of ANY adult content online. By imposing an impossible standard to prevent access by minors, the law effectively closes off access to everyone.

It would be interesting to see an analysis of the current minimum costs associated with starting an adult business, even ignoring the cost of legal advice and any costs associated with harassment by local law enforcement. I suspect the costs are quite high, especially for a firm producing original content. The bottom line, in my view, is that our government is imposing the moral views of a few to strongly discourage and often prevent access to adult materials wanted by the majority.

Why is everyone talking about child porn?

The COPA has nothing to do with child porn. It restricts *adult* material that *may* be viewed by a minor. In other words, " dirty pictures."

By applying " community standards" bikini pinups could be all that is needed to invoke prosecution under COPA.

It's the disturbing sort of law that makes it illegal to distribute the sort of material it's perfectly legal for the intended recipient to possess, even under the standards of the supposed "community."

KFG

elections and judges

So how do we contribute to Judge Steven's election campaign, and get rid of the other 8?

Oh, wait, they're appointed. Rats. His point on how this means sites would have to cater to the least permissive denominator is darn insightful.

Clearly, in most cases there's going to be a lag between internet-saavy judges and reality, even moreso with politicians (as politicians cycle through quicker than high-level justices).

Freedom of Speech: 0 Censors: 1

This ruling is complete and utter bullshit. I can't believe that a so-called "strict constructionist" court would allow such a blatant trampling of our rights to free speech.

I'm about to make a big admission here: I work in the porn industry. I have a wife and 2 children that I have to feed and provide for for the next dozen years. These laws are totally misguided and are simply based on the will of a Christian fundamentalist minority that controlls Congress and wants, no, needs to see me out of a job and my family starve. This is just simply wrong, not to mention bad science.

Bad science how, you ask? Well, take my family for example. I can remember several occaisions where I have caught my 7-year-old daughter or my 11-year-old son watching some of the pornographic videos we have laying around the house, and there is absolutely nothing wrong with them! They were enjoying it! The only reason the governement passes these laws is because they want to keep us from expanding our market to children, for some misguided moralistic crusade. I envision a day when we will be able to distribute our videos at a special low rate on the playgrounds of America. And frankly, my kids' future college educations ain't getting any cheaper.

Community Standards???

And what exactly is that?

Welcome to legal arbiterariety (arg... spelling)...

Cheers...

We're staying open

Irregardless what the gov't decides what is best for their peasants, we're staying free and open until our servers are smashed to bits by military personnel. We'll move offshore if need be. Long live free speech. Long live free porn.

Not to be confused with COPPA

COPA = Child Online Protection Act

COPPA [ftc.gov] = Children's Online Privacy Protection Act

Get it?
Got it?
Good.

Stevens' dissent

In dissent, Justice John Paul Stevens said community standards would not work in cyberspace. He said "the community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech."

He said speech is effectively prohibited whenever the least tolerant communities find it harmful to minors.

Stevens expressed concern the law could cover advertisements, online magazines, bulletin boards, chat rooms, stock photo galleries, Web diaries and a variety of illustrations encompassing a vast number of messages.

So we can talk freely only with people whose identities we can prove we have verified. And anything I might suggest (involving a Coke can and a Justice) here could land me and/or the proprietors in jail because some kid might read this in a jurisdiction where it's only considered proper to use Pepsi, and perhaps even one so backwards that only bottles are acceptible.

BTW, don't we now know that the great trove of old paintings of eroticized, crucified saints and Jesus lead directly to sexual abuse of children by priests? Should these images, too dangerous even for priests, be allowed before children in any context?

This Court should be impeached for its conduct in the last election. Then we need a tolerable president to appoint a new one.
___

"Standards of the adult community as a whole"

You've got to love legal ambiguity used to clarify legal ambiguity:

jurors will not consider the community standards of any particular geographic area, but rather will be "instructed to consider the standards of the adult community as a whole, without geographic specification."

Yeah, that will work. When exactly is the entire adult community getting together to write up these standards? I know I haven't gotten my invitation yet. If this law survives long enough to be enforced (which it probably won't, due to the countless other possible challenges), the jurors on these trials are going to have lots of fun. "Ok, heads it is harmful to kids, tails it isn't..."

Of course, the courts have a long history of upholding community standards requirements in cases where there is no specific community to use as a standard, so this shouldn't be surprising. The major flaw in all of this, regardless of community, is that what is considered to be harmful to children and what actually is harmful to children aren't usually the same, and this varies from child to child.

Too bad we can't just make parents responsible for raising their kids... Oh, right, I forgot that porn sites automatically pop up whenever a parent's back is turned, completely unrequested by the kid at the computer. And porn sites hypnotize kids and force them to look at explicit material whether they want to or not, permanently corrupting them no matter what the parents do.

.sex I'll say it again.

Create a .sex domain. All sites dealing with pornographic materials must register under this new domain. I'm sure there must already exist appropriate definitions of pornography. Create a straightforward process where people can file for exemptions, for those grey areas.

Parents/communities can then block out .sex access.

I'd also go one step further and make it illegal for sending unsolicited mail that includes sexual/adult references/images/links. I can't believe that it's legal for these sex spammers to send links like this to email accounts that might be used by children.

Suprisingly readable

I find the actual text of the decision [supremecourtus.gov] to be suprisingly readable. It's not just a bunch of legal obscuritanism, such as I've gotten used to out of lawyers by reading too many EULAs.

I find that the justices do understand the technology pretty well. They understand the difference between web and email. They understand that you can't determine geography on the Internet.

The key to the decision seems to be that they feel that the material covers a narrow enough range of stuff that the definition of "community" is not problematic. Art, for example, would be considered to have "serious literary, artistic, political, or scientific value for minors" and is therefore OK, no matter what it depicts. The CDA lacked this clause, and that's why they struck it down.

In a sense, they want to define a "national community" where the really obscene stuff can be restricted. Obscenity has long been considered to be unprotected speech, and even if they rule against COPA it won't change that. It's just that the Web for the first time gives us the opportunity to be obscene on a national scale.

Of course, now you just get off into a definition of "art". Like most law, despite pages and pages of text, at the root it seems to be up to a judgment call by a judge and/or jury as to what is acceptable. So it may well still be considered overbroad, and that is the real news today: this one attack on the law is invalid, but there are plenty of others.

If you object to the decision, I highly recommend Justice Stevens' dissent, at the tail end. He finds the explanations I gave above unconvincing, as do I.

Justice Stevens, dissent, community standards

This is worth pondering, from Justice Stevens' dissent:

In the context of most other media, using community standards to differentiate between permissible and im- permissible speech has two virtues. As mentioned above, community standards originally served as a shield to protect speakers from the least tolerant members of society. By aggregating values at the community level, the Miller test eliminated the outliers at both ends of the spectrum and provided some predictability as to what constitutes obscene speech. But community standards also serve as a shield to protect audience members, by allowing people to self-sort based on their preferences. Those who abhor and those who tolerate sexually explicit speech can seek out like-minded people and settle in communities that share their views on what is acceptable for themselves and their children. This sorting mechanism, however, does not exist in cyberspace; the audience cannot self-segregate. As a result, in the context of the Internet this shield also becomes a sword, because the community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech.

Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

The Real Deal

Ok, so here's the real deal on what the court said, taken right from the ruling:

[quote]
"There is a very real likelihood that...COPA...is overbroad and cannot survive such a challenge." (From Justice Kennedy's concurring judgement, PDF page 32)
[/quote]

Basically what happened today was the Court said that the appeals court used the wrong reason to justify the injunction put in place by the district court. That's all.

As is said by Kennedy later, "[O]nce it is accepted that we cannot strike down the Act based merely on the phrase 'contemporary community standards,' we should go no farther than to vacate and remand..." (PDF page 39)

Assuming that the ACLU et al. can prove that the law is unconstitutional in other respects (and I believe that they can) the Court is basically saying that they'll treat that as a totally separate issue. In the meantime, the law's still not in force, and I believe that the Court will eventually rule that the law is indeed unconstitutional, just not for this precise reason.

Community standards

I'd say this is a pretty generous ruling. After all, the standards of the "online community" we're all a part of are pretty lax!

What has been the harm so far?

It occurred to me that since the early 1990s the Internet has been fairly liberal as far as this law is concerned. The status quo is an "unregulated" Internet.

My question-- is there any evidence of damage to children that has resulted over the past ten years?

If there were millions of severly damaged/warped/traumatized American children suffering from unrestricted Internet access, this law might make sense. But I've never heard of anything like that. Do kids complain about too much material inappropriate for them? How about kids in other less-restrictive countries than the US?

In short, what scientific justification is there for this law? Maybe there is clear evidence of harm (?), but if not, could a lack of negative effects on minors in the last ten years be an argument against this bill?

W

Community of one?

The key to the decision seems to be that the porn producers are making this pornography available to every single community, and therefore are responsible for determining the community standards of whatever community their content is being delivered to.

This seems to suggest that we're all restricted to the lowest common denominator. But suppose we drive it down even further. When I request something from a web site, that is strong evidence that people in the community of "people around my computer" want to see it. The community defined by my state, town, or neighborhood is completely irrelevant, because they cannot see it.

I find porn sent to me via unsolicited email particularly disturbing for precisely that reason: that may well violate the standard of some community who has not requested it.

In effect, I form my own community of one, and nobody else's standards need apply. So the only test you need is whether I am old enough to make the decision to request it, and whether or not I have asked for it.

Pathetic, pathetic.

Honestly. Let's give parents another excuse to shirk their duty of supervising their kids.
And this is the same court that essentially just allowed simulated child-porn.
Hypocritical and pointless. Supervise the kids for once. Half of what the filtering of information does is block websites on free servers, blocking much useful information, rendering the internet useless for gathering infomation in many cases. Censoring pornography, I can understand. A porn filter, sure. Go ahead, that's another way to make people find ways around it. It is remarkably easy to access pornographic material in public institutions.
The problem is that the law is not just dealing with objectionable material, but has given itself jurisdiction over the internet unfairly.
Just WATCH the kids, for crying out loud.
And if anyone is caught looking up porn, perhaps they should put up a wall-o-shame in libraries with the person's image on it. Hell, I don't know.
I'm glad I'm not the law.

Why Clarence Thomas is a fool

Supreme Court Volleys on COPA [wired.com]

The starkest warning came from Justice Clarence Thomas, who wrote the plurality opinion and saw no problems with the idea: "If a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the nation."

Taken to its logical extent, this reasoning could shut down linking to sites deemed evil by enough people in any community -- need I go on?

Irony. Thomas himself likes porn.

Pity the opposition to his appointment came down to porn and a coke can. The real reason to oppose him was because of his lack of logic and his moral (read religious) views on just about any case. And why doesn't he speak up during court? Is he a mute?

This SCOTUS is loaded with Thomases, and we are going to be living in their version of the U.S. for a hundred years to come.

Re:A Good Thing

This isn't about kiddie porn. It's about run-of-the-mill porn, featuring adults, which could possibly be VIEWED by children on the internet.

Re:A Good Thing

Why? Because you say so?

Re:First COPA post

So just to check: I can still post whatever pictures I like here in the UK, so long as they're legal under UK law?

What about if I holiday in America? Will I get kidnapped like Skylarov did?

It's a sad day when only companies with credit-card processing equipment are allowed the freedom of the press.

Re:A Good Thing

And why is that?

What makes kiddie porn worse than any other kind of porn? A few centuries ago it was commonplace to marry 13 year old girls and have children with them and look where it got us. Alexander the Great was a 16 years old emperor.

Re:COPA, DMCA and beyond

It's not enforced. COPA is still being held in a lower court for review. The Supreme Court said that the "community standards" wasn't 'overly broad', and therefore not unconstitutional under that one criteria. It still may be found unconstitutional under other criteria, in the lower court to which the Supreme Court returned this ruling.

Next time, try a little thing I like to call "reading the article".

Kierthos

Re:COPA, DMCA and beyond

Actually it's COPPA, the Children's Online Privacy Protection Act [ftc.gov], not COPA.

Re:COMMON SLASHDOT MYTHS 2

You also have to take into effect that if you make it hard to get guns, that doesn't mean violent crime, including murder, will go away. You will however reduce murders involving guns. You also make it harder for people to defend themselves. In urban areas, the police may have decent response time, and they may be able to do a decent job of protecting you. In rural areas, the police aren't going to show up until after the issue is resolved. If you're attacked, you're on your own.

Statements like this one are ridiculas trolls.
If you support the fascist conservatives who oppose gun control, these deaths are on your head.

Those deaths are on the heads of the people who killed them. Simply taking away all the guns doesn't prevent violent crime. Murder existed long before guns were invented. A gun is a tool that can be used to assualt or defend. It's the person who uses it that's to blame for how it's used, not the gun.

Re:I sure am glad

"Hell, lets not go after drug users or sellers either cause they are always out there. Hey, lets not go after people who speed because everyone speeds. Also, no need to fine jay-walkers since everyone jay-walks every-so-often,..."

Yes, let's not go after drug users or sellers. Drug use is a consensual crime that harms nobody but the person taking them. True, sometimes some drug users commit other crimes while under the influence of whatever is they're taking, but their are already laws on the books to address said crimes. If I want to take illicit drugs or heavens forbid, make my own medical decisions, it's not yours or anybody else's business. Same goes for jaywalking.

Your rhetoric is specious and ill-informed. You need to learn the difference between a consensual crime and one involving coercion, threat, force, or theft. I hope you educate yourself if you plan on voting in the future.

Re:A Good Thing - give us a definition

Besides this not being about child pornography please provide us with an exact definition of what constitutes child pornography.