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The Courts Government News Your Rights Online

Supreme Court Rules on Challenge to COPA 298

Posted by timothy from the know-it-when-they-see-it-a-few-times dept.
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).
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Supreme Court Rules on Challenge to COPA More

Supreme Court Rules on Challenge to COPA

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  • For those of you too lazy or ignorant... (Score:5, Insightful)

    by rebelcool ( 247749 ) on Monday May 13, 2002 @12:54PM (#3511060)
    ...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...

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

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

      I think the real story is in the fact that eight out of nine justices asserted that a law regulating content on the net which relied upon local community standards was not overbroad -- that is, that those who wish to obey such laws must cater to the community standards of every place in the U.S. or risk prosecution. Whether the COPA itself is ultimately upheld or struck down, this statement about the sort of content restrictions of which the Court would approve with is kinda scary, IMHO.

    • I disagree. I think this is a huge story. The supreme court has just ruled that the standards which make things illegal to place something on the World Wide Web debend on the standards in the community of the viewer. Isn't every thing offensive somewhere. What happens when community standards change? If you're simply not caught up with the latest politically correct trend, can you be arrested and stuck in jail? Many communities consider homosexuality offensive. Is talking about homosexuality on the web illegal? How do you know if something is going to be considered offensive or not? How can you tell if your constitutional right to free speech outweighs this law? There are many religions that may not meet community standards. Do poeple have a right to talk about them on the web? We do have freedom of religion, but maybe some things go to far by community standards. Of course you don't really know what's acceptable or not until you're arrested and tried. This is a horrible ruling. Justice Stevens realized this. Unfortunately he was in the minority.

  • Send 'em back to school (Score:4, Informative)

    by CaptainSuperBoy ( 17170 ) on Monday May 13, 2002 @12:55PM (#3511069) Homepage Journal
    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.

    • Re:Send 'em back to school (Score:2, Insightful)

      by Anonymous Coward
      Justice and fairness is a highly complex philosophical question. If laws could be fairly interpreted by common (and let's face it, stupid) people we would not need to have lawyers and judges around.

      At best common justice is barbaric "eye for an eye" justice.

    • Right, but freedom doesn't mean whatever, whenever, whoever. There is a reason why it is illegal to publish child pornography (yes I know that's not what the ruling was about). Same reason that a 13yr old boy can't walk into a beer store and by Playboy. The law states that parents' ability to police their children's activities online is becoming more and more difficult. It also says that as a result government has a responsilibity to help. It would be hard to stop Timmy from buying Playboy on the walk home from school, so there is a law to prevent him from doing so.

      No doubt, as the articles say, Congress did have good intentions here. It was aiming to make it difficult for children to get pornography even without their parents around - just like the beer store scenario. The problem here is that in the beer store the person working there can use his/her judgement and stop the child. Even with preventative measures on the Internet it would be similar to porn locked up in a case of sorts, no person working at the beer store, and the child possessing sufficient skills to pick the lock. The beer store could have a camera or some other security device that monitors the case, but on the Internet how would this be implemented? Would there be a system where each user is tracked where they go? I don't think so.

      Then what if the site is hosted outside the United States? Then, as one poster has laready said, what if the owner of the site vacations in Florida, will they be arrested?

      This law is messy. This subject is messy, and I don't have an answer.
      • Right, but freedom doesn't mean whatever, whenever, whoever. There is a reason why it is illegal to publish child pornography (yes I know that's not what the ruling was about).

        That's true, but the govenment also pretty clearly defines what child pornography is. In this case the definition of the crime is if it's considered obscene by community standards. That's just way too vague, and definately stomps on some forms of free speech that should be protected. I understand that there are some things the parents don't want their children to have easy access to. However, I don't believe that requiring content and communication on the internet to meet those standards is reasonable.

        I agree that congress has good intentions. Maybe they should legislate the creation of a browser that will only go to sites that opt in for use by minors. Parents could then only let their children use those browsers. If they let their kids use other browsers, then they are giving consent for their children to view material that may be intended for adults. I'm sure that kids would find a way around this, just like they find a way to get their hands on Playboys and beer now. There isn't a foolproof way of preventing your children from being exposed to "obscene" material unless you're willing to constantly monitor them.
    • ok, tell me where the speach was abridged?

      Abridgment: The act of abridging or the state of being abridged

      Abridged: To cut short; curtail

      Regulate: To control or direct according to rule, principle, or law

      sems to me that by telling internet porn sites that they will be held to community standards is a regulation, not an abridgment.

      one thing they realy erks me though, is the miss interpretation of the reigion clause. saying a child can not pray in school or where the garb of his/her religion or even display symbols of your religion in school is a bastardization of the meaning of that clause.
      • miss interpretation of the religion clause. saying a child can not pray in school

        Umm...could you post a link to a court filing and/or reputable news article about such a case?

        School prayer cases are about authority figures encouraging or leading prayer in front of a group. That's a level of coercion not at all the same as student praying on their own.

        Here's some links [adl.org] for you [about.com].

  • First Amendment (Score:3, Insightful)

    by DarkZero ( 516460 ) on Monday May 13, 2002 @12:58PM (#3511093)
    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 (Score:4, Informative)

      by Stonehand ( 71085 ) on Monday May 13, 2002 @01:18PM (#3511208) Homepage
      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.
      • I would have laughed at Ashcroft having the statue of a "topless" woman representing justice covered up, were it not for the fact that nobody has ever covered her up before. That means that your Secretary of Justice is the most conservative Secretary of Justice since the statue was erected (30s?). At least when it comes to nudity.

        Or maybe he was uncomfortable promiting his shady agenda under her direct, righteous innocence.
        • That means that your Secretary of Justice is the most conservative Secretary of Justice since the statue was erected (30s?).

          For God sakes, man, don't use the e-word! Have you no sense of decency?!? Won't somebody please think of the children?!

    • "free speech" means "free if the majority of the populace likes it or agrees with it"

      and more importantly, is video footage of police brutality considered "harmful to minors"?

      Is this just an attempt to get the whitehouse.com domain back?
    • 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.

      Dimwit, it doesn't mean that they agree with what you're saying, it means that each community gets to decide for themselves what is legal and what's not, instead of having Big Brother force it down their throats. The liberals get to be liberals, and the conservatives can be conservatives. If you disagree with the standards of the community in which you leave, you're free to move, but don't expect the government to create laws to pamper your beliefs at the expense of others'.

      That's what cracks me up about liberals. You want to defend people's rights, but you want to do it by having one massive tyrannical government declare what each and every place must do, regardless of the individual character of that town, city, or area. What kind of screwed up thought processes lead to those conclusions?

      • it doesn't mean that they agree with what you're saying, it means that each community gets to decide for themselves what is legal and what's not

        Which is exactly the issue here. Because the Internet crosses over the boundary of communities, they have to figure out how to apply this to the world-wide community. It has nothing to do with Liberals or Conservatives.

    • Believe it or not, constitutional rights are not extended to all U.S. citizens. For example, children in juvenile court do not have a right to a jury trial (McKeever v Pennsylvania.)

      Until a child is an adult, parents are responsible for what the children are allowed to do or not do. In the absense of parental discipline, society has an established parental role (parens patriae.) Just as liquor stores can be barred from selling to minors, porn sites can be barred from distributing to minors.

      If you produce porn, this Act doesn't bar you from distributing it. The Act simply requires that you take reasonable steps to ensure that minors are not in your audience while you exersize your free speech. You're mostly free to say what you want to other citizens; however, since children are not citizens, parents and society can decide for them as to whose speech they can listen to.
      • Please try to think past what a law says and into what it DOES. Laws like these are intentionally try to deceive you and unfortunately, most people fall for it. This law says that it's protecting minors from pornography on the internet, but the only way to verify age on the internet is through a credit card, which is more easily falsified than any fake ID, because anyone can take anyone else's credit card and claim that they're the person whose name is on it. Thus, in any prosecutory case that's trying to shut down a porn site, the prosecutors just have to prove that a handful of minors are able to get into the site using false identification, and then the site will be held accountable in the same way that brick-and-mortar liquor stores that ignore blatantly false IDs are.

  • So where do we find this "community"... (Score:5, Insightful)

    by Godeke ( 32895 ) on Monday May 13, 2002 @01:00PM (#3511104)
    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...

    • Ick. Which church?

      How many seconds were left in The Matrix?

    • t's interesting to see how poorly understood the Internet is to the justices.

      I don't think the problem is that they didn't understand. I think the problem is that they didn't care:

      While JUSTICE KENNEDY and JUSTICE STEVENS question the applicability of this Courtís community standards jurisprudence to the Internet, we do not believe that the medium's "unique characteristics" justify adopting a different approach than that set forth in Hamling and Sable. ... If a publisher chooses to send its material into a particular community, this Courtís jurisprudence teaches that it is the publisherís 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 com- munity in the Nation. See Sable, supra, at 125n126. Nor does it change because the publisher may wish to speak only to those in a "community where avant garde culture is the norm," post, at 6 (KENNEDY, J., concurring in judgment), but nonetheless utilizes a medium that transmits its speech from coast to coast. If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.

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

      • And this is where their understanding fails. If they are applying this only to Emails or other forms of internet communication where the the information is sent from the 'publisher' to individuals all over the world, then they have a point.

        But in a general way, the Web is a fetch medium. I ask for info from your server which you supply. But I have to ask! My local browser has to request the information for it to be provided to me. Its more like me calling a long distance porn line from my home town than it is like a porn phone line setting up shop in the middle of town.

        and that, they do not get at all.
    • Using the community standard, does it give any commmunity the ability to find internet content objectionable regardless of geography?

      Say a server hosted in LA has porn on it and my community in Minnesota finds it objectionable. The only way for us to get the data on the server is to connect up there -- the server's ISP doesn't have any connectivity in our community so the data isn't even "running through" us on its way to somewhere else.

      Why couldn't the same rules then apply to physical-world things? Ie, why couldn't we find that when we get on a plane and fly to LA that there are clubs there we find objectionable? I mean, we have to fetch the data from the server just like we have to fetch the experience.

      Allowing someone to object to something using their community's standards when the thing thing isn't in their community *except when they go get it* seems kind of hard to understand.

  • Misleading headline... big suprise (Score:3, Interesting)

    by _LORAX_ ( 4790 ) on Monday May 13, 2002 @01:09PM (#3511145) Homepage

    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 (Score:4, Informative)

    by b.foster ( 543648 ) on Monday May 13, 2002 @01:09PM (#3511146)
    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.
    • Although it is high time to vote Libertarian, I am of the firm belief that it is time for people to stand up and ask WTF?

      All of the above bills have the prefix HR meaning House of Representatives (for those not in the know). This means that a Representative sponsored them. This is not a Senator of whom there are 2 in every state.

      What needs to be done is to call what ever individual has been elected in your district and arrange a meeting about this. When they decide to marginalize you, organize the community. Run against them. Make them realize, as well as all the others, that the time to sell out our liberty is over and it will not stand.
    • Someone mod this guy troll. His sig's offensive and a spoiler.
    • Umm, either I am completely mistaken, or this is a bunch of FUD. I did google searches on each of these bills, and this is what I found:

      HR 4239 [house.gov] To revise the banking and bankruptcy insolvency
      laws with respect to the termination and netting of financial contracts

      HR 4551 [house.gov] : To repeal the 1993 increase in tax on Social Security benefits and to develop and apply a Consumer Price Index that accurately reflects the cost-of-living for older Americans who receive Social Security benefits under title II of the Social Security Act.

      HR 4608 [loc.gov]To designate the United States courthouse located at 220 West Depot Street in Greeneville, Tennessee, as the "James H. Quillen United States Courthouse".To designate the United States courthouse located at 220 West Depot Street in Greeneville, Tennessee, as the "James H. Quillen United States Courthouse".

      HR 4277 [ftc.gov]: the "Quality Health-care Coalition Act of 1998"

      Like I say, I may be mistaken, maybe they don't use unique ID's for the bill numbers, but my skeptic alert went off when I read this post that contained zero links to any reputable site.

  • Chilling effect (Score:5, Insightful)

    by markwelch ( 553433 ) <markwelch@markwelch.com> on Monday May 13, 2002 @01:10PM (#3511153) Homepage Journal
    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.

    • 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.

      This is often said. But both the CDA and this decision are clear that, paradoxically, outright commercial pornographers have affirmative defenses in the law. It's one of the ironies of this whole debate. Out-and-out professional sex sites are SAFE FROM THE LAW, because they use credit cards. It's the amateurs, the people who give it away to everyone, who are subject to prosecution:

      Like the CDA, COPA also provides affirmative defenses to those subject to prosecution under the statute. An individual may qualify for a defense if he, 'in good faith, has restricted access by minors to material that is harmful to minors: (A) by requiring the use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology.'

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

      • Suppose I were creating a site that sells videos, and I wanted to include "trailers" or still photos to show what the film is about. Like any other online film reseller, I know that I can't demand that my customers to pay me for the privilege of shopping at my store.

        What this law says, is that I must do exactly that: lock the door to my store and sell keys, even though that's not a business I want to be in. And customers who want to pay by cash or money order or PayPal are simply out of luck: they can't shop at my store, at least they can't see the box art and the trailers.

        What's even more frustrating, is that there is no "credit card, debit account, adult access code, or adult personal identification number" that effectively bars children. Indeed, many minors have credit cards, or can obtain an adult-ID passcode. To my knowledge, there simply is no "reasonable measure" which would "restrict access by minors." Instead, the effect is to reduce all access, probably reducing adult access more frequently than access by minors (who often have more time and ingenuity to circumvent the system).

        No, I don't want to show minors any "material that is harmful to minors," but under this law that means I simply cannot operate an "adult product" online store at all. (In theory, I could operate a store that doesn't show the product "box art" nor trailers, but then I lose all the advantages of selling online -- now any local porn shop has a distinct advantage.)

        Of course, none of this addresses issues like a legitimate sex-education web site resource. As I understand it, I can include all the text I want, but pictures won't be permitted for any topic that might be "harmful to minors," unless I charge a fee which can be paid by credit card.

        • I hate to seem to defend the law, but an objection that is easily answered won't help. If the best you can say is "This is stopping me from selling sex material online by money orders!", that's just not a powerful challenge. The fact remains that credit-cards are the most common way of selling on-line, and credit-cards are a defense under the law. Once someone has signed-up on the commercial sex site, with a valid credit card number, you can show them anything. The court knows that credit cards are not 100.0% reliable. They accept it as imperfect. That proves my point, these laws ironically DO NOT have much affect on the hard-cord sex sites.

          From the old, district-court, CDA decision [rochester.edu]:

          Perversely, commercial pornographers would remain relatively unaffected by the Act, since we learned that most of them already use credit card or adult verification anyway. Commercial pornographers normally provide a few free pictures to entice a user into proceeding further into the Web site. To proceed beyond these teasers, users must provide a credit card number or adult verification number. The CDA will force these businesses to remove the teasers (or cover the most salacious content with cgi scripts), but the core, commercial product of these businesses will remain in place.

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

  • Why is everyone talking about child porn? (Score:3, Informative)

    by kfg ( 145172 ) on Monday May 13, 2002 @01:16PM (#3511191)
    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
    • Not distribute -- sell. COPA specifically applies to communication for commercial purposes. Posting free porn, for instance, wouldn't fall under COPA unless it's something like advertising/teasers for a pay service, or otherwise part of a for-profit enterprise like getting banner clicks.

      Also, it's an affirmative defense if the seller, in good faith, restricts access to minors by, say, credit card age verification, or the various adult-checking services. If the minor stole an adult's credit card and uses it to pass the check, the vendor doesn't get nailed for a COPA violation as long as it's still operating in good faith.
      • courts have a way of considering almost anything to be commercial when they want it to be - even the hint of the intent to make money off of it sometime in future seems to work.

        On another note, there seems to be some sort of contradiction - if you're offering it for sale over the internet, then you, must be using either a credit card or an online pay service such as paypal. In either case, whoever is getting your porn therefore hase submitted to some sort of identity check.

        Therefore, they will either a) not accept good faith defenses or b) prosecute sites that offer "free" porn or c) both.

        • I suppose they might nail a site if it accepts Visa Buxx. ;)

          But yes, in some regards, the law is oddly written -- the good-faith defense and credit card verification are specifically mentioned, as are the commerce bits (and there's a definition of 'commercial purposes' in the law, as well. The harmful-to-minors communication apparently has to be a "regular course of such person's trade or business" with an objective of earning a profit as a result). So unless sites are accepting CC#s without age-checking (never having run a business, I wouldn't know how that works -- maybe the CC# vendor charges an additional fee for age checking?), few should fall under it...

          ...except sites that try to profit from advertising, like collecting e-mails for resale, or banners. If they don't use a CC#, then it'll be harder for them to check.

          In addition, it has to be done with server-client hypertext protocols (or their successors), so something like text-based posts on USENET wouldn't be covered, AFAICT. I don't know why it's like that, but *shrug* it's there.
      • Indeed, and anyone who wants to take the radical step of actually *reading* the act can find it here:

        http://www.epic.org/free_speech/censorship/copa. ht ml

        Note also that while obviously directly targeted at "dirty pictures" it isn't restricted to such and explicitly applies to all "material that is harmful to minors."

        Now as defined by " community standards."

        There are those that would honestly claim that telling little Jimmy that there is no Santa Claus is harmful to him. There are, in fact, actual communities founded on the principle that knowledge of the existence of the Theory of Evolution is harmful to minors.

        KFG
        • Read the definition of "harmful to minors" again. Covered material either is obscene (but transmitting obscene material over the wire is already covered by other laws, IIRC), or that fails the Miller test (which requires that it a depiction of sexual content that is designed to pander to prurient interest).
          • The question is are 6 A, B, and C logical 'ands' or 'ors.' Just because the language is phrased similarly to other such legislation doesn't mean it has legal indentity.

            Questions like this end up in the prosecution of blatently innocent people.

            KFG

  • elections and judges (Score:3, Funny)

    by ghostlibrary ( 450718 ) on Monday May 13, 2002 @01:19PM (#3511212) Homepage Journal
    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).
  • 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.

  • Stevens' dissent (Score:3, Insightful)

    by wytcld ( 179112 ) on Monday May 13, 2002 @01:40PM (#3511332) Homepage
    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.
    ___

  • 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.

    • 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.

      Obviously, you've never done a search for "free movies" on google. I've watched my 11 year old brother stumble across porn sites while searching for video games on the net. Pornographers explicitly design their pages to be found by children - they include keywords like "free games" and "free movies" which have absolutely nothing to do with the content they display. Furthermore, the pages are loaded with annoying popups that just won't go away. No, the kid isn't technically hypnotized, but curiosity is a strange and powerful thing - especially for children, who often lack both discretion and willpower. Even if a child has enough willpower to hit the back button, 30 seconds later, another site will popup, and this process goes on until the kid shuts down the browser. The notion that parents can control what their children see on the computer while surfing the web is intrinsically naive. Even an innocent interest in cars or video games can inadvertently lead a child to a porn site.

      • Pornographers explicitly design their pages to be found by children - they include keywords like "free games" and "free movies" which have absolutely nothing to do with the content they display.

        Now, let's assume for a moment that this is true. Why in the world would a "pornographer" design a site to be accessed by children? Pornographer's have to pay for bandwidth, and children do not possess credit cards and therefore, cannot make any online purchases. Therefore, you are stating that a pornographer would go out of his or her way and actually pay to have children see pornography even though they stand to gain nothing finically from the transaction.

        Let me address the obvious, "Hook them while their young argument too." To attract children who are we'll say, 13-15, a pornographer would have to hope to instill a desire to see porn in the child for the next 3-5 years! Even then, chances are an 18 is not going to have much as far as credit cards are concerned.

        Did you ever think that pornographers who use keywords like "free games" and "free movies" are going after adults who are searching for those items? I fail to see why a pornographer would explicitly try and attract children to their site. In fact, most pornographers try to dissuade children from accessing their sites or at least, give that appearance in order to appease the masses.

        At any rate, I would also like to ask you to quote 1 peer-reviewed study that shows harm caused to children by exposure to pornographic material.

        Regardless of whether you agree with the material (or if you think it is moral), the only time the government has the ability to regulate expressions of speech is when they are proven to directly cause harm to the community. The fact is that their does not exist a single scientific study to show this.

        That is why "community-standards" are such a dangerous thing since this amounts to "majority-standard." The only standard that should be regarded by the government is objective-standard.

        Oh yeah, but then we would actually live in a free country...
        • Because, as everyone knows, pornographers are Satanists, and they are preparing the world for the arival of their Dark Master by corrupting the minds of the human race. Everyone also knows that young minds are more easily corrupted, and thus it serves their goals more completely to target their filth towards children.

          Or maybe it's just because the porn industry still pays its advertisers, and these sites are just trying to get as many page views as possible...

  • 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.

    • So who decides what's pornographic? Do bikini shots count? How about Madonna's "sex" book; should amazon not be allowed to sell that except from a different site, Amazon.Sex?

      Suggesting that the entire internet should be legislated to only kid-friendly content is stupid and reckless.

      Rather than limit what everyone else can do "to protect the children," why not go with the .kids domain, and make it illegal to host pornography there? There's still the question of what constitutes pornography, but by intentionally registering and operating in the .kids domain, and company or individual could be said to be buying into the restrictions on that domain.

      I'm with you on the spam, though, but I'd say just make unsolicited email in general illegal. While porn content may be more offensive or inappropriate for some people or children, the root problem is not the content but the delivery method; fix that, and the content problem goes away.

      Cheers
      -b
    • By utilizing agreements on appropriate content within the domain agreements, new TLDs could create a child and family safe area on the Internet leaving great swaths of area appropriate for adults.

      US or any country's laws can not reach all Internet providers, so the agreement has to be made at the point of registering the domain. .sex isn't a solution as no one operating from a foriegn area can be forced to segregate themselves there.
  • 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 (Score:3, Interesting)

    by Seth Finkelstein ( 90154 ) on Monday May 13, 2002 @02:20PM (#3511613) Homepage Journal
    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]

  • What has been the harm so far? (Score:3, Insightful)

    by VValdo ( 10446 ) on Monday May 13, 2002 @04:25PM (#3512571)
    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

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