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Appeals Court Upholds COPA Decision
sconeu writes: "Wired News is reporting that the Third Circuit Court of Appeals has struck down the Child Online Protection Act (COPA). The government's next move is to either appeal to the Supremes or ask for a full trial (IANAL - I don't understand why the radically different options)." The full decision is available on PACER. The appellate court was only affirming the temporary injunction against enforcement of the law that was issued earlier by the district court, there hasn't been a full trial of the law yet. Here's the ACLU press release.
I mean this is great news, and I like the fact
that the decision was unanimous. However it
still worries me that the majority of American
politicians seems to have no regard for free
speech whatsoever.
It's fine that the courts throw out laws like
that, but these laws shouldn't have passed in the
first place. Protection of constitutional rights
should be the task of the goverment, representatives and senators, too...
Every time I read about the courts over-turning some insidious, obviously unconstitutional law, my first thought is "Good. Things are still right in the world, and someone is acting to preserve the ideas our country was founded on." The next thought that comes to mind, however, is "Why does it take the COURTS to do this?" Why don't the law-makers, the elected officials whom we have (theoretically) chosen to create the rules best suited to serve our society, care about the constitution? They seem to see it as an obstacle to be overcome in obtaining their objectives and personal agendas. I suppose that is all the more reason to thank whatever gods you may or may not believe in that the courts seem to take their responsibility to society seriously....
The internet was never intended for kids.
In the beginning of the net it was almost
exclussively accessible by adults, and there
was always talk about sex.
Nobody ever claimed - "here is the internet, it's
a free babysitter." Protecting children from the
net is easy: don't give them access.
You need a babysitter? Hire a babysitter!
The ruling today was on a ACLU request for a preliminary injunction to prevent the application of the law while waiting for it to undergo review. They won an earlier, lower court ruling for an injuction, which is what was appealed. The government now has the option of trying to appeal the preliminary injuction further or to stop fighting it and go to the full trial that would shut down COPA completely.
It's pretty clear that a preliminary injunction has to be granted in this case; the ACLU has a pretty damn strong case, and they can show a real risk of harm if the COPA is enforced. That means that an appeal to the Supreme Court on the injunction is unlikely to get anywhere, which is why Wired is reporting that the government is leaning toward going to a full trial. After all, the sooner the appeals are over, the sooner the case can be brought to a conclusion.
There's no point in questioning authority if you aren't going to listen to the answers.
Where I am from (*.au*) we have no right to freedom of speech in our constitution. This is in a country most people would have called free until recently. I am sure you have heard what our gouvernment has done. Our politicians try and tell us that freedom of speech is implied in our constitution. This only seems to apply when it suits them and fundamentalist pressure groups.
Although the censorship laws introduced here have been largely ineffective so far they are still there and may be enforced with greater effort in the future. A scary situation for sure.
"Patience is a virtue, afforded those with nothing better to do." - I don't remember
I cannot help but conclude that these laws are passed, and then defended, solely to please loud-mouthed, small-minded (Hello, Jodi!), and deep-pocketed constituencies (who likewise know they're bad laws, but are merely trying to have something to tell the little old ladies who send them their social security money every month). It seems it's all a collossal con game, a waste of taxpayer money, and the only people being fooled by it are some inbred trailer-park goobers somewhere in the Deep South. (Hello again, Jodi!)
Apologies, Sincere, 1 Each, if this has been posted multiple times. I kept getting 'unknown error'.
Based on your text, you seem to think the Constitution is a list of suggestions, not the foundation of our country.
Good parenting is not something that can be legislated into existance, and laws already exist that come down _hard_ on the real predators out there. This act merely takes more rights away from adults and does little to protect children. It's like outlawing guns, the only people who won't own guns are people who follow laws. Of course, the criminals will hold onto their guns, and the end result will be that the criminals have been empowered. These types of poorly thought out laws are foolish, and only fools are deceived by them.
Creating more laws isn't the answer, better education of both parents and children is.
There is nothing for 4 or 5 or even 10 year olds to do on the WEB anyway. There probably should be a TLD created for kids only so that ALL other domains would be forbidden for them... Let say: www.toys.kid - this could be a toy site and it's easy to filter it out, so then www.adulttoys.com you don't look at 'adulttoys' you look at '.com' and forbid it. :]
BTW I am 24 so I earned my right to look at www.adulttoy.com
You can't handle the truth.
IANAL either, but I will take a stab at explaining why they have the different options.
The day after COPA became law, the ACLU and several website owners filed in District Court, a challange COPA. (A lawyer will have to explain how they could do this. I thought that someone had to be actually charged with violating the law in order to question the constitionality of a law.) The ACLU immmediately applied for a preliminary injuction that would stop the government from enforcing COPA until after the trial. The judge held a 5 day hearing on the preliminary injunction and then granted it.
The government appealed that ruling. Since the circuit court, the government has the option to appeal the circuit court's ruling to the Supreme Court.
Remember that this is a preliminary injunciton. That meens that no trial has been held to determine the facts of the case. The court uses some guidelines in deciding to grant a preliminary injuction. Some of them include the likelyhood of the party winning at the actual trial and the damage done to both parties if the injuction is granted or not granted.
So what the District Court judge and the Circuit Court said was basically: Although no trial has been held yet, we think that this party is likely to win at the actual trial and more damage would be done to that party if we don't grant the injuction than done to the opposing party if we do grant the injunction.
This explains the second option. If the government doesn't want to appeal the preliminary injunction to the Supreme Court, they have to go back to the District Court for a full trial to see who wins at the actual trial. (Of course, there is a third option, which is that the government just drops the case.)
The irony of the case is that the ACLU and the websites will be trying to prove that their web sites ARE harmful to minors, while the DOJ and the anti-porn people are going to be trying to prove that these websites are NOT harmful to minors.
Why? Because if the websites are not harmful to minors, then the websites have no "standing" to challenge the law. The District Court would rule that they are in no danger of being charged under COPA so the case is dismissed, the preliminary injuction is lifted, and the government can go back to enforcing COPA without having to worry about the Supreme Court throwing out the law.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
A of course NAL, bit my understanding of this decision is that it was just upholding an injunction. The full trial on all the information hasn't been heard yet, this is just a ruling on a motion about how things will remain during a trial.
Although, my understanding of injunctions was that they were supposed to be quick by their nature and purpose, and not drag on for years. I didn't even know that they could be appealed...
While I've only begun my research, here are a few resources that you -- and others should probably look into.
(It takes me a while to dig and digest info before I reply. I wonder how many people come and go before I can post)
The history of the ACLU challenge to COPA, including the filings, injunctions and hearings.
The Appellee brief (the basis of appeal) in the recently decided case, so you can see the issues that were specifically raised
And of course, no discussion can be complete without COPA itself
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
Today, the First Amendment is under attack by both the right (pr0n) and left (religion, campaign finance), the second is under attack by the left, the fourth in the name of drugs and children, and the ninth and tenth have long been forgotten.
The members of Congress often bow to the pressures of lobbyists because their sole goal is to get re-elected. Corporations don't have an inherent right to free speech, as they aren't a person, and thus, they shouldn't be able to contribute to political campaigns/give favors. HOWEVER, all of the money given to politicians by corporations, unions, etc means nothing if they severely piss off their constituents. Most people really don't pay much attention to what their government is doing unless it has a direct and immediate impact on them so most of the crap skates by... however, can you imagine the headlines in the local paper? "Congresscritter votes against bill to protect children from online molesters" Every parent in the district would be screaming for their head - it's political suicide. For as much as the Congress ignores the Constitution when it's convenient, people (en masse) today lack the understanding and foresight to understand the damage of Unconstitutional laws, especially if they convinced they'll get all those "millions" of perverts waiting online, and the harm they will bring.
Every issue tends to be demagogued these days... whether it's how many child seeking perverts are on the internet( probably FAR less than 1 in a million ), how many "innocent" kids died from guns last year( about 4000 child deaths, 85% of which were 16-19, 90% of which were drug/gang related - more innocent kids drowned in pools ), racism, or whatever. Nobody cares about the facts or what's right or wrong anymore, it's all about what makes the mass feel good. Nobody analyzes the harm that can be caused by these laws and proposed Constitutional amendments( the greatest threat of all ). Politicians cave so quickly to their constituents these days that instead of doing what's right they do what won't harm them come re-election. We're quickly approaching tyranny by (often apathetic, always ignorant) majority.
Don't leave your mind so open that your brain falls out. Don't close it so much that you cut off the blood.
The People of the United States of America must get out of their Who Wants To Be A Millionare, McMeal, Pokemon daze and realize that consumerism is bad for the people. It is very obvious that a new political system, one that is much more socialist, with the people much more in focus, must be implemented! The future of this great country depends on it. Do you want the rich members of the MPAA running your life? Do you want the rights of Doubleclick put ahead of your childern?
I sure don't.
A.H.
"If you wish the sympathy of the broad masses, you must tell them the crudest and most stupid things."
I simply think that this is a good thing, because mainly I believe I'm the exception, not the rule.
..". A big part of this is the media portrayal of things, only a small percentage of the population is actually doing the evil things you see on t.v., but people think it happens more than it does because that's all they see on the news. The other part of this is that people react with fear and hostility to whatever they don't understand, and the age/culture gap contributes to a lack of understanding. I see this general effect happening with issues regarding the net more often now, i.e. there will be a story somewhere about how fbi agents arrested the vice president of some large corporation in a sting where the fbi agent was pretending to be a 14 year old girl, and then I'll go get on a train and hear people talking (or read an editorial in a newspaper) about how the net is so dangerous. It's positively annoying.
Practically -everyone- believes that they're the exception, and not the rule. (or that 'their kids' are the exception, and not the rule). I remember being 15, and having elderly people tell me "you're such a nice boy, you never see nice kids anymore, they're always running around robbing places
anyway, anytime you think you're the exception, and not the rule, it's time for a good long review of the matter at hand, imho.
Code or be coded.
> I'm not going to get into the whole gun debate thing.
Ok, thanks for sharing.
> It really doesn't take rights away from the general adult population,
> it enables the law enforcement community to come down much harder on
> the bad guys.
This is the same logic used to justify 'Zero Tolerance' laws, and those have turned into huge examples of mis-use of law. The more powers you give law enforcement, the more they will be abused. It's not paranoid rambling, it's a truth of life.
A decade ago, various law enforcement agencies were given almost cart blanche abillity to tap phone lines of suspected drug dealers. They were also given incredibly powers to confiscate money and possessions from people merely SUSPECTED of drug dealing, but they never had to prove a thing.
The end result, thousands of innocents have their phones tapped, the whole judge-approval for taps has become a joke, and thousands of people have possessions and money confiscated at gunpoint by police officers and never get any of it back, even when there is no evidence of drug dealing at all.
When these draconian measures were implemented, the people objecting were branded paranoid and condescendingly told by people like you that 'the only people that will be affected by these laws are law breakers. They will just let the police come down harder on lawbreakers, not you and I. And why object to phone taps? If you're not doing anything illegal, what do you have to hide?'
Sound familiar?
The US, despite our vaunted claims to freedom, is being systematically dissected and legislated into a religious police state. The same thing happened in Iran 20-30 years ago, and it's happening here too. COPA is just part of the process, and you're blind if you don't see it.
The issue deals with free speach. Laws regulating expression are given the strictest scrutiny. One of those conditions is the "least restrictive means" and other condititions like reasonable means.
It is NOT unconstitutional to prohibit minors from certain material. Adults have full freedom of expression, minors have different levels of constitutional rights.
If it was not an unreasonable burden upon publishers, than preventing minors from accessing the material is okay. However, if the burdens are unreasonable and would create a chilling affect on free speach, then it is not okay.
If there was a system whereby people could post adult material and prevent minors from accessing it, then it would be okay. If the means to prevent minors from accessing it would restrict adult speach, than it is no good.
For example, if everyone was issued a digital certificate that verified that they were an adult (age >18) at age 18, and that could be used without compromising any additional information, than it would be okay.
For example, if Biometrics were common place, and your fingerprint could unlock the key to send, than this would not be an unreasonable burden. There would be no tracking (and therefore no chilling effect), and minors wouldn't have access to adult material.
That would not be an unreasonable scenario nor likely unconstitutional.
If a ratings system was in place that could truly categorize the site, than if you could screen based on locality without an undo burden, that would also be okay. Something like P3P (client negotiating with the system) would work, because it wouldn't chill free speach, but would allow community standards to reign.
Alex
I cannot see it as a good if this law or a similar one goes any further towards eliminating the wonderful variety on the Net and moving towards even more of a homogenous gloop. I think the dot-coms are doing a good enough job of that already, thank you.
The Mongrel Dogs Who Teach
We don't. The framework is all there in the Constitution and its respective amendments.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The above text forms the preamble to the U.S. Constitution, a purpose statement which indicates that the following legal document contains instructions on how to make a nation fit to live in.
The 9th article of the Bill of Rights notes: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." COPA is a fine example of a violation of this article.
Not only that, but in 267 U.S. 276 (1925), Fulton National Bank of Atlanta v. Hozier, the presiding judge remarked: "The general rule is that, when a federal court has properly acquired jurisdiction over a cause, it may entertain, by intervention, dependent or ancillary controversies; but no controversy can be regarded as dependent or ancillary unless it has direct relation to property or assets actually or constructively drawn into the court's possession or control by the principal suit."
Why do we put up with this sort of thing? Because we don't vote. Exercise your constitutional right and vote in the upcoming elections!