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Links: Ashcroft v. ACLU
Posted by Steven Wu on Tuesday, June 29 @ 12:02:29 EDT Free Expression
Very quick news: The Supreme Court, in a 5-4 decision, has just sided with the ACLU in Ashcroft v. ACLU, the Child Online Protection Act (COPA) case (read the decision).

Justice Kennedy, writing for the Court, held that the District Court was correct in issuing a preliminary injunction against enforcement of COPA because the statute likely violates the First Amendment. The crucial point of Kennedy's argument is that the Government failed to show that blocking and filtering technologies were not a less restrictive alternative that would substantially meet the government's interests. Although Kennedy suggests that Congress could not actually require people to use filtering software in their own homes, he points out that Congress could pass legislation encouraging the use of filters. As a result of today's decision, the case is remanded to the District Court for trial, where both sides will now litigate the issue of whether blocking and filtering software really is a less restrictive alternative.

Justice Stevens, concurring, has some strong language about how COPA's criminal penalties are simply inappropriate for this kind of regulation.

Justice Breyer in dissent, writing for the Chief and Justice O'Connor, essentially disagrees point by point with Justice Kennedy, but he also has a section in the beginning arguing that COPA is actually not that speech restrictive.

Justice Scalia, writing for himself in dissent, remains true to his philosophy and argues that commercial pornography is not protected by the First Amendment. See also his opinion in the City of Littleton case, where he makes the same point in a zoning case regarding an adult entertainment facility.

 
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