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Ashcroft v. ACLU: Evaluation
Posted by Steven Wu on Tuesday, June 29 @ 14:53:53 EDT Free Expression
Earlier we posted on the holdings in ACLU v. Ashcroft, a Supreme Court decision handed down today that, in fairly strong language, cast doubt on the constitutionality of the Child Online Protection Act (COPA)--though it certainly did not strike down the statute, despite what you may hear elsewhere.

In my view there are at least two interesting points about the opinion.

First, the majority cast doubt on the constitutionality of COPA by favorably describing blocking and filtering software. But that rationale makes the opinion somewhat bittersweet: although criminal penalties for online speech are bad (and it's good that the Court seems to agree), it's not as though filtering software is much better.

Second, Justice Breyer makes a very good point in dissent: The majority here that wholeheartedly endorses the effectiveness of filtering software is mostly the same as the dissenters who unhappily listed the faults of filtering software in the American Library Association case. Indeed, Justice Breyer seems to make a special effort to list the exact text of the dissenting opinion's criticisms in ALA.

 
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[No Subject] (Score: 0)
by Anonymous on Wednesday, June 30 @ 10:21:17 EDT
I haven't yet decided whether I come down on the side of the filter-promoting majority or agree with the Breyer dissent. This statute might be better for freedom of speech than filters... or it might not.

Filters are creepy. U.S. demand for sex-free internet for our kids is fueling this industry to develop what is, from the perspective of free speech, a very, very bad technology. Any filter you develop which is good at blocking sex sites can be purchased and implemented by some foreign government to block political speech. Moreover, as Breyer rightly pointed out in American Library, filters are imperfect. Even when implemented with the "innocent" intention of blocking sexually explicit material, they tend to block a lot of non-obscene stuff which ought to be constitutionally protected.

Thus, it might make more sense, and pose much less of a long-term threat to free speech world-wide, to target obscenity at the source, as this statute attempts to do. The statute targets only commercial obscenity, and the constitutional caselaw on obscenity is pretty thorough and clear. So I think the "chilling" effect would not as big as made out to be. Anybody who has something to say should be protected by the "literary, artistic, political, scientific... value" clause. And if you're not sure whether you fit into that category, make your speech non-commercial.

There is one big problem with this particular statute that concerns me, however, which is that it redefines obscenity. Each prong of the obscenity definition is modified by the phrase "with respect to minors" or "for minors." Breyer thinks this narrows the definition of obscenity, but I think it expands it.

Particularly the prong that, "[the material], taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. What would this mean? Lots of Americans feel that 17-year-olds shouldn't be reading "Catcher in the Rye" or learning about condoms. Most Americans probably feel that 10-year-olds shouldn't. Is the "for minors" standard defined with reference to a 10-year-old or a 17-year-old? Who decides? (And if minors can't vote, does that mean that nothing holds serious political value for them?) And remember, if they aren't suitable for minors, none of us will be able to access them on the web without identifying ourselves.

Breyer pooh-poohs the idea that these changes could dramatically expand the coverage of the statute, arguing that if it has value for adults, it certainly has value for a significant group of minors as well. But surely Congress thought it changing something when it added those words to the statute. If the web's commercial content has to be purified to be age-appropriate for 10-year-olds (or for a conservative's idea of what is appropriate for 17-year-olds) then maybe this is not the safer route to go....


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