Wednesday, January 21, 2009

The end of the COPA saga


The Supreme Court has denied cert in ACLU v. Mukasey, the 3d circuit case that struck down (on several occasions) the Child Online Protection Act, or COPA, which Congress passed in 1998 after parts of the Communications Decency Act (CDA) were struck down in ACLU v. Reno. COPA was immediately enjoined and never took effect, but the litigation bounced up and down through the federal courts and produced not one but two Supreme Court decisions.

COPA tried to avoid the fate of the CDA by limiting itself to websites for commercial purposes. Nevertheless, the 3d circuit concluded that first party filters installed by parents were a less restrictive alternative to imposing criminal penalties on website operators if they did not actively prevent minors from viewing prohibited content.

The Third Circuit's decision is a good one. But the most important issue for me has not been the doctrinal question of whether filters are a less restrictive alternative under the first amendment but rather a question of network design. Who should bear the burden of filtering and blocking unwanted content in an digital environment and where should the filtering decisions be located? In my view it is much better to put the filtering decision with the end user, who can better tailor filtering to their needs. (In this case, the end user is the parent who decides on the conditions of the child's access).

Not all parents are alike and not all children are alike; different parents might want to block different things. Some might decide not to block access at all but supervise and educate their children about Internet use in other ways. Without criminalizing website operations, the market can produce webservers and browsers to facilitate parental choice, as well third party software solutions, many of which already exist.

Generally speaking, the Internet should place filtering decisions and responsibilities on the end user, not the publisher of the content. There are exceptions to this basic rule, but sexually explicit speech is not one of them.


Hear, hear! (The alternative seeming to be "Fcuk yeah!") Anyone looked to see if the opinion is available on the web already? I won't get a chance to look for a couple of hours.

Well, my mother always said, "That machine [the TV] has an off switch."

On the other hand, it should be recognized that a refusal to maintain public order fragments the public and produces the "bowling alone" syndrome, i.e., since we don't consider the TV programs Prof. Balkin's children watch suitable for our children, the two groups have no common culture, and regard each other as strangers.


You've just offered a brilliant argument against homeschooling. I doubt that was your intent. At any rate, abridging First Amendment rights seems an odd means of building national unity. Well, I mean, odd for us. That approach to "unity" worked just fine for certain 20th century strongmen. (Whatever our differences, our moms would have seen eye to eye on that "off switch" comment!)

Denial of cert. doesn't generally involve an opinion.

Sean speaks of the need to "maintain public order." At issue, is a vague overbroad law involving downloading "harmful" materials on one's home computer.

This is no more "public" than who consenting adults have sex with at home w/o money changing hands (to limit it to Lawrence v. Texas).

If Prof. Balkin has kids, I have this strange thought that they would have some "common culture" even with kids from families with views quite different from his.

Starting with the idea about that "off switch," which suggests a cultural mind-set some censors would find troubling.

As long as the user pulls, it's silly to put morality filters any place but himself. He requested the bits; he gets the bits requested.

When someone else pushes, it becomes more debatable. Did I ask for spam that fills my inbox with material I consider offensive? No. It got pushed to me. I didn't ask for a single bit of it. I'd have no problem criminalizing it.

The wires in the middle, of course were always morally neutral. If the law has at last figured this out, good for it.

The COPA headline to this post initially brought me joy as I reveled in the feeling that Barry Manilow's "Copacabana" was unconstitutional and that I would never have to listen to it again. But then again, I had control of the on-off switch, as did SCOTUS by not issuing Cert. Once again, let's hear it for the ACLU (which I joined promptly after George H. W. Bush's attack on MA Gov. Michael Dukakis as a card carrying member back in the 1988 campaign). Let's get those arms moving in the style of Y-M-C-A. I can't hear you!

Homeschooling? Why does Mr. Link think I have a view about homeschooling? But, if forced to generate a view on short notice, I would say that the right to home school is protected by the First Amendment, but certainly there are costs to community imposed by those who choose that route. Sort of like the view I have about internet porn.

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