COPA sent back for retrial

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.