Balkinization  

Tuesday, June 29, 2004

COPA sent back for retrial

JB

The Supreme Court upheld staying enforcement of COPA in Ashcroft v. ACLU but said that technological advances in filtering technology in the past five years may have resolved questions about whether less restrictive alternatives to COPA existed. Therefore a new trial was required.

The decision was 5-4, but the mix of justices was unusual: Kennedy was joined by Stevens, Souter, Thomas, and Ginsburg. Dissenting were O'Connor, Rehnquist, Scalia and Breyer.

This is not the best result the Court could have reached, but at least it keeps COPA from being enforced for now.

Scalia's dissent argues that the business of commercial pornography could be banned entirely, so there is no first amendment problem with COPA's lesser remedy of requring commercial websites to prevent access by minors. The premise, it seems to me, is absurd. Pornography does not lose its protected status because it is sold for profit. Scalia's argument that there is no first amendment protection for commercial entities that deliberately emphasize the salacious aspects of non obscene materials in order to appeal to a purient interest would, presumably, put a very large portion of the entertainment industry at risk of being put out of business.

Breyer's dissent discusses an important issue: Is there any first amendment problem with requiring adults who want to have access to pornography to use credit cards or obtain identification verification passwords? Breyer says this is only a modest cost.

I am not so sure. The effect of this solution is to require adults to obtain what is effectively a passport to travel through significant portions of the Internet, rather than the model that obtains in real space, where children are walled out from a small number of spaces that are open to adults. Creating this sort of passport model isn't necessarily a bad idea, but it's not clear that it has no serious effects in chilling speech and keeping away audiences.

In any case Breyer's dissent also raises the question of whether this decision is simply a temporizing move. It's quite possible that there were five votes to keep the stay, but not five votes to strike the statute down in its entirety. So the result is a compromise-- kick it back to the lower courts for another round. Breyer says: there's no more evidence you need to make a decision. So you should make one. If you think that there are no real less restrictive alternatives to this statute, or, put another way, that you don't want Congress legislating in this area, you should simply say so.


Comments:

Note that Justice Thomas, no doubt exercising his famous "authoritarian streak," voted with the majority in this case. Indeed, he provided the decisive fifth vote. For over 10 years now, Justice Thomas has been the First Amendment's best friend on the Court. But, by listening to only Prof. Balkin and his ilk, the media and, therefore, most people don't know that.

For what it's worth, my further comments on Justice Thomas -- and on Prof. Balkin's cheap and completely erroneous characterization of him -- are posted below. Enjoy.
 

I would comment on the following item but comments down't seem
to work.

Anyway, you refer to it as Ashcroft v. ACLU here and ACLU v. Ashcroft in the next post. The latter is correct, right?
 

I wonder how Scalia will deal with the fact that many post 'porngraphic' (i.e., sexual)pictures of themselves for free on the net.
 

I found Breyer's dissent fairly strange -- particularly his notion that there was no need to find a least restrictive means since:
1. The Miller test for obscenity is constitutional
2. The addition of "as it applies to minors" doesn't really mean that much (only a small additional amount of material would be covered), so therefore
3. There's no constitutional problem with it.

I found a bit flippant his assertions that what is prurient interest to adolescents is also to adults and what has serious value to adults also does to children.

It appeared that he wanted to fix the law by almost, but not quite, entirely ignoring the phrases relating to minors.

- Pete Guither
 

If Breyer is really saying anonymous access to the Internet should be bannable, that's horrible. There's nothing "unclear" about it. McIntyre vs Ohio Election Commission says we can publish anonymously, but Breyer doesn't even want us to be able to READ anonymously? Give me a break. Having all of one's browsing habits vetted by web sites (and presumably turned over to Ashcroft on demand) is one of the most chilling concepts I can imagine.
 

There is a problem with both Scalia's and Breyer's positions. What if I want to give away my porn for free? If I produce porn by myself and willingly give it away for free, I shouldn't have to take a credit card to verify the recipient is over 18. It may be a small cost to me, but it is a cost which does limit my free speech. You can make a similar comment about what Scalia says. Since he believes commercial porn should be banned entirely, he would have to accept that my noncommercial porn IS PROTECTED by the first amendment. Therefore he'd have to vote against this law because it hinders my free speech.
 

Andrew,
COPA only applies to "any communication for commercial purposes." Giving away your own porn probably doesn't count as "commercial purposes."
 

Eeek! Gather ye porno while ye may.

Seriously, don't these people realise that games and porno are the only things that have driven forward demand for faster more powerful PCs. If there were no porn, the whole PC industry would collapse. JJ
 

So porn is really and truly PC. Perhaps if the First Amendment speech clause protected porn, then in time, just as there is no significant flag burning or desecration, porn might cease to be significant. While I know porn when I see it, I choose not to view it. I assume many others similarly choose. Where is Justice Douglas when we really need him?
 

JB writes "Pornography does not lose its protected status because it is sold for profit". But unless I'm mistaken the Ferber decision, banning child pornography, is still the law of the land. If so, it is presumably because child pornography causes harm to the children portrayed in it. There seems to be an agreement that children can be harmed, as either viewers or participants in pornography, but once they turn 18, the harm disappears overnight. People have argued forcefully that women are harmed by and through pornography, and the book, "In Harm's Way" by Catharine MacKinnon and Andrea Dworkin, give plenty of testimony to that effect. So why should this speech be protected? "Fighting Words" are not protected (Chaplinsky vs. New Hampshire) and pornography it can be said does far more harm than these words ever did.
 

COPA only applies to "any communication for commercial purposes." Giving away your own porn probably doesn't count as "commercial purposes."It would if your website, or, more importantly, your weblog, accepted advertisements.

You all seem to think that COPA only bans "porn". What it bans is "content that is harmful to minors", and then it makes a stab at defining what that is. As usual Congress came up with a laundry list of the forbidden. Here's something the statute calls "harmful to minors": "exhibition of the...post-pubescent female breast." This means that a weblog that carries advertising and posts a picture of Janet Jackson's "wardrobe malfunction" at the Super Bowl could be liable for a fine of $50,000 and six months in jail. Even if you've got a defense, who's going to take even the slightest chance that some ambitious U.S. attorney isn't going to crack down on such salaciousness? The result would be the end of the web as we know it, since almost every website would have to impose some sort of entrance requirement. So -- no more easy to use hyperlinks, no more web-surfing, and, since you'd have to post proof that you're not a minor in order to access any of these websites, Big Brother could easily track your web usage.

Give Thomas credit. If it weren't for his vote, Breyer's defection from sanity would have upheld COPA by a 5-4 majority, and the web as we know it would be gone.

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