Last week a Federal judge struck down COPA, a law requiring adult websites to use age verification technology. The ruling by Senior Judge Lowell A. Reed Jr. held COPA unconstitutional because it is more restrictive of speech (but no more effective) than the alternative of allowing private parties to use filtering software.
This is the end of a long legal process that started with the passage of COPA in 1999. The ACLU, along with various authors and publishers, immediately filed suit challenging COPA, and Judge Reed struck down the law. The case was appealed up to the Supreme Court, which generally supported Judge Reed’s ruling but remanded the case back to him for further proceedings because enough time had passed that the technological facts might have changed. Judge Reed held another trial last fall, at which I testified. Now he has ruled, again, that COPA is unconstitutional.
The policy issue behind COPA is how to keep kids from seeing harmful-to-minors (HTM) material. Some speech is legally obscene, which means it is so icky that it does not qualify for First Amendment free speech protection. HTM material is not obscene – adults have a legally protected right to read it – but is icky enough that kids don’t have a right to see it. In other words, there is a First Amendment right to transmit HTM material to adults but not to kids.
Congress has tried more than once to pass laws keeping kids away from HTM material online. The first attempt, the Communications Decency Act (CDA), was struck down by the Supreme Court in 1997. When Congress responded by passing COPA in 1999, it used the Court’s CDA ruling as a roadmap in writing the new law, in the hope that doing so would make COPA consistent with free speech.
Unlike the previous CDA ruling, Judge Reed’s new COPA ruling doesn’t seem to give Congress a roadmap for creating a new statute that would pass constitutional muster. COPA required sites publishing HTM material to use age screening technology to try to keep kids out. The judge compared COPA’s approach to an alternative in which individual computer owners had the option of using content filtering software. He found that COPA’s approach was more restrictive of protected speech and less effective in keeping kids away from HTM material. That was enough to make COPA, as a content-based restriction on speech, unconstitutional.
Two things make the judge’s ruling relatively roadmap-free. First, it is based heavily on factual findings that Congress cannot change – things like the relative effectiveness of filtering and the amount of HTM material that originates overseas beyond the effective reach of U.S. law. (Filtering operates on all material, while COPA’s requirements could have been ignored by many overseas sites.) Second, the alternative it offers requires only voluntary private action, not legislation.
Congress has already passed laws requiring schools and libraries to use content filters, as a condition of getting Federal funding and with certain safeguards that are supposed to protect adult access. The courts have upheld such laws. It’s not clear what more Congress can do. Judge Reed’s filtering alternative is less restrictive because it is voluntary, so that computers that aren’t used by kids, or on which parents have other ways of protecting kids against HTM material, can get unfiltered access. An adult who wants to get HTM material will be able to get it.
Doubtless Congress will make noise about this issue in the upcoming election year. Protecting kids from the nasty Internet is too attractive politically to pass up. Expect hearings to be held and bills to be introduced; but the odds that we’ll get a new law that makes much difference seem pretty low.
