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).

A Good Thing

[Free Bird]

There are some places where liberty of speech doesn't apply, and k1dd13 pr0n is one of them.

For those of you too lazy or ignorant...

[rebelcool]

...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?

[tps12]

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:First COPA post

[peddrenth]

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.

First Amendment

[DarkZero]

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:Send 'em back to school

[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.

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

[Godeke]

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...

Re:For those of you too lazy or ignorant...

[Bootsy Collins]

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.

Re:not very troubling?

[jonnythan]

Actually, you're wrong.

The rights ARE presumed, and then Congress is forbidden from abridging them.

Reread the Constitution ;)

Re:not very troubling?

[kfg]

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

Chilling effect

[markwelch]

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.

Re:Freedom of Speech: 0 Censors: 1

[Samurai_DoucheBag]

Thats a great post. I should be allowed to wnjoy whatever I want as long as Im not hurting anyone else or their right to do the same. I like porn, I watch porn, I spank to porn, I support the porn industry and hell, maybe someday I can actually be in a porn movie. The fact is...I just cant stand some moral majority telling me what to do. Like I said, if theres no harm, then theres no foul.

Stevens' dissent

[wytcld]

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.
___

Re:"Standards of the adult community as a whole"

[gillbates]

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.

Re:"Standards of the adult community as a whole"

[lkaos]

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...

What has been the harm so far?

[VValdo]

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