COPA Worse Than Censorware?

Slime-dogg writes: "Looks like the feds are trying to pass a law to ban posting of erotica on-line." The law, COPA, isn't really news. What's news is that the ACLU is arguing that censorware is "less restrictive" than simply criminalizing sexual content. Essentially they are telling the court, "You should not allow COPA because, instead of banning sex, the government could install censorware and that would be better." Legal arguments by definition must be practical, so I see where the ACLU is coming from, but many will interpret this as green-lighting government-mandated censorware.

Comments

They said what?

[Duxup]

I'm reading the comments on the article above where I see the following line:

"Essentially they are telling the court "you should not allow COPA because, instead of banning sex, the government could install censorware and that would be better.""

I read the article and I see where the article notes that the ACLU seems to support parents installing such software. That I understand. However, I do not see where the ACLU has suggested the government too install such software, just suggesting that they seem to support parents doing so. That's a big jump assuming that because the ACLU SEEMS to support individuals installing software to filter something from their children that they also support the government doing so based on the fact that fact and that they note that censorware is "a less restrictive alternative."

Just because the ACLU doesn't seem to have a problem with me sending my kids (actually I don't have kids, but if I did) to bed without ice cream. Does not mean that they would support the government mandating that everyone has been a "bad boy/girl" and somehow restrict everyone's ice cream intake, just because the ACLU feels that it is less restrictive than making ice cream illegal in general. I don't think they would support either myself (and thank goodness!)

I wonder if anyone else sees it that way or if I've maybe misread this?

This is how the law works

[alexhmit01]

Explicitly protected rights in the Constitution are granted the strictest protection. For the state to curb them, they must demonstrate:

1) A compelling state interest
2) The law is the least restrictive approach

The state can show that preventing minors from accessing porn is in the state's interest. This is TRUE, if for no other reason than certain parents, fearing their children's exposure to pornography, will prevent their children from accessing new technology. This will prevent those children from having the same opportunities as others.

Regardless of whether you think that exposure to porn is detrimental, it is believed that it is, and there are genuine harms from not having a solution.

However, site owners have a Constitutional right to this protected speach. Adults have the legal right to access this speach. However, the state has the right to try to protect children from this speach.

The ACLU's argument is that there is a less restrictive means, censorware. Requiring adults to register to receive persecuted speach would be horrific. This is speach that many Americans want to silence, therefore, requiring adults to admit to partaking would be effective censorship. As a method for protecting children, this is NOT the least restrictive means, as the censoring products can accomplish the goals without restricting the rights of others.

Now, the censorware has problems. In general, these problems are not the availability of porn, but rather the other stuff blocked. As a result, children behind this wall are having their rights to access protected speach violated. Therefore, the state cannot impose it on something like a library.

Clearly these views ARE consistent. Filtering software CAN be used by parents to protect children, so a restrictive law is not needed. Mandatory filtering prevents minors from accessing protected speech, so are also bad.

Alex

What is wrong?The ACLU is saying that it's A-Okay.

[ratsdliw]

The ACLU is saying that it's impossible to filter the internet but they agrue it's better to filter it than ban offensive content completly.

They want to refine the wording of COPA as not to make it overly broad. The main complaint is what kind of nudity is "harmful to minors". Where does one draw the line?

COPA defines material that is "harmful to minors" as:

[a]ny communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that -- (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manor patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

As you can see this gives the government sweeping power in what they can ban. I think it's insane when our government tell us what "lacks serious literary" value, etc etc.
You can get the whole motion here.

Why the ACLU is doing the right thing here

[IO ERROR]

Under U.S. case law, courts will usually nix a law on free speech grounds if there are other "less restrictive" alternatives to accomplish the government's goal. For the ACLU, the existence of filtering software -- even with its faults -- is a way to convince judges that there are options other than COPA.

In such a case, "government must make use of less drastic means if it would regulate at all," writes constitutional scholar Laurence Tribe in American Constitutional Law.

That a "less restrictive means" exists is sufficient for the Supreme Court to kill a law on free speech grounds. The government doesn't have to use it. And the Supreme Court can't mandate such a use anyway.

What this means is that, finally, censorware is going to do some good by getting this law killed.

Government-mandated use of censorware will get killed on other grounds in completely separate cases.
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Our view on sex is warped

[rodgerd]

For some reason (I blame the Puritans 8) the English speaking West has an utterly warped view of sex, and on keeping children away from sex (where "children" seems to include, eg, 21 year olds if you're the US vice-president's wife).

This leads to insane anomalies, such as a 16 year old being able to view graphic depictions of violence being perpetrated for yucks, while people having sex in even the most conservative context (loving relationship), never mind fun, is walled away behind felony statutes. Heck, in many parts of the English-speaking world, people can legally have sex before they can view it. Which is nuts.

Meanwhile, other parts of the world worry more about, eg, the productizing of childhood (eg, Sweden's restrictions on advertising to children), or promoting the notion that violence is a good and fun way to solve problems (Germany's restrictions on pro-violence games). You'll forgive me if I think those countries have their heads screwed on right - I'd rather 14 year olds get the message that sex is natural and enjoyable (in the right circumstances) than thinking that beating people up is neat.

Re:free speech

[ronfar]

Now the ACLU is in a position where they actually have to *defend* one of the industries (see the mattel articles in YRO) that they have very recently been trying to defend the people of this nation against[censorware]. What I don't get is why it either has to be censorware or censorship? IMO neither is acceptable under the first ammendment to the constitution.

Perhaps you are not aware of recent changes to the First Amendment enacted by the Supreme Court, see this article for details:

Second, five justices also agreed that a form of expression -- in this case, totally nude dancing -- may be banned outright because of the "secondary effects" it has in promoting crimes such as alcohol abuse and domestic violence in the surrounding neighborhood. Souter, however, asserted that government must offer some evidence that these secondary effects will flow from the expression and that its statute will alleviate them.--quote from "Kandyland decision a new First Amendment landmark," by Tony Mauro on Freedom Forum

Missing from the above quote is the fact that David Souter was the only one of the justices who believed that you should have to prove "secondary effects." Of the remaining justices:

1.Scalia and Thomas: Basically said that the government can ban whatever you want if it is supporting "public morals."

2.O'Connor, Rehnquist, Kennedy, and Breyer: Basically said that as long as the government asserts negative secondary effects as an excuse, they can ban whatever they want.

3. Stevens and Ginsburg: Dissented, pointing out that this was basically the end of the First Amendment as we know it in the United States of America.

Essentially, the "secondary effects doctrine" of the Supreme Court currently is, "if someone thinks it might cause a crime, it can be banned for that secondary effect." Currently, the First Amendment has about as much teeth in it as the Second Amendment, years of packing the Supreme Court with far right conservatives has had it's desired effect, which was always to reduce the effectiveness of Constitutional arguments. (Conservatives have been upset by "activist courts" which basically used the Constitution to enact legislation, such as bussing and Roe v. Wade. So the goal of conservatives and the "strict constructionist" philosophy was to weaken the Supreme Court and give power back to the Congress.) If the CDA were proposed today, it might not just pass, it would probably also pass Constitutional muster with the current court.

I suspect that this is why the ACLU is trying to argue that "well, we have filters so we don't need to enact bans" because under the new Constitution, just the fact of the First Amendment no longer protects you from being censored. It's a brave new world.

I hope people will consider this in the next election.