an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Child Online Protection Act Still Unconstitutional
So says the Eastern District of Pennsylvania in this opinion. As you may recall, Congress passed the Child Online Protection Act back in 1998 in response to the Supreme Court's decision in ACLU v. Reno, which struck down the Communications Decency Act. COPA was quickly enjoined in the Eastern District of Pennsylvania, and for the past decade the case has moved to the Supreme Court twice and back.
The Supreme Court sent the case back the last time to determine whether the use of filtering technology by parents was an adequate alternative to criminalization under COPA. If so, COPA would not pass the test of strict scrutiny that normally applies to content based restrictions on speech. The district court reviewed existing filtering technology and concluded that it is a less restrictive alternative to-- and in some cases even more effective than-- COPA's criminal ban on indecent speech on websites. (Filtering could block websites located outside the United States and they could also block indecent speech that did not use the Web.). Finally, the court held that COPA was both unconstitutionally vague and overbroad.
The case will now travel back to the Supreme Court. The key issue, as before, will be whether end user (or first party) filtering technology is a less restrictive alternative. The district court's findings of fact will be very important in resolving that question.
Behind the legal maneuvering over less restrictive alternatives, however, is a more basic question: From the standpoint of free expression and innovation policy, are first party filters controlled by end users a better solution to the problem of indecent speech than imposing costs on web speakers to prevent indecent content from reaching end users?
I continue to think that first party solutions are better. Criminal penalties against web speakers will force them to divide all their content into "sacred" and "profane", i.e., harmful to minors under COPA's definition and not harmful. Assume for the moment that installing digital signature technology (that would recognize an adult ID) is quite cheap, and that the use of adult ID's became widespread and poses no privacy problems. Even so, segregation of materials will be an expensive proposition for many sites, and particularly for sites that are not primarily pornographic but that might have some materials that some community in the United States would think inappropriate for children.
By contrast first party filtering systems can be tailored to filter out many different types of materials rather than simply employing a single on-off category. They require no segregation of materials by web speakers. And filters can reach off shore pornography sites that are unaffected by COPA.
If COPA were to be enforced, it would simply lead many pornographers to move overseas undermining the law's purposes. However, without COPA, the market of interested parents can fund the development of increasingly powerful filtering technologies that can offer multiple settings, block other content besides sexual content (for example violent or racist depictions), and can reach materials whether or not they come from the United States.
Moreover, if Congress wants to encourage the development of such family friendly filters, they can appropriate monies or create tax breaks to speed research. Congress might also encourage dissemination of information about family friendly filters and promote education on how to use them. If Congress wanted to do something constructive to help parents, this would probably be a better approach thanCOPA.
I fail to see where the Constitution grants the federal government the authority to regulate speech. Indeed Hamilton argued that the Constitution needed no Bill of Rights, in part because he believed that the federal government had no power to impinge upon rights that might be enumerated in such a Bill. For example, on freedom of the press, he wrote, "Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" Federalist 84.
Quite aside, then, from the positive prohibitions of the 1st Amendment, the federal government is overreaching its bounds here. It is not a government of general powers, as much as it pretends otherwise, and as much as the Supreme Court has lent credence to those pretensions.
I agree with Professor Balkin that first party filtering is the way to go. However, I might add that even if one were going to go the route of requiring website operators to verify age, COPA suffers from huge overbreadth problems, probably caused either from haste of drafting or the desire of its sponsors to impede a lot more speech than simply porn sites.
If one were drafing a COPA statute in the hopes that it would be upheld, I would suppose that instead of just defining material as "obscene", "indecent", or "harmful to minors" and using variants of the Miller test, instead one might specify types of photographs that must be placed under an age verification system. For instance, one could say that any website displaying a photograph depicting actual sexual penetration must use an age verification system.
As I said, I have my theories as to why COPA doesn't do this. And I would rather that the government simply facilitated filtering. But this is what you would do if you really wanted an age verification statute that courts might find to be constitutional.