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Supreme Court Rules on Challenge to COPA
Publiux writes: "LawMeme is reporting today that the Supreme Court upheld portions of the Child Online Protection Act because using community standards to determine what could be harmful to minors was not overly broad and thus not unconstitutional. Before you stop spreading your 'sexually explicit material' online, a lower court still has to determine if the law is unconstitutional for other reasons." Snibor Eoj submits this link to coverage at Yahoo! as well. Other readers link to AP coverage running at NandoTimes and the decision itself (PDF).
This isn't about kiddie porn. It's about run-of-the-mill porn, featuring adults, which could possibly be VIEWED by children on the internet.
Supreme Court rules that using a law using 'community standards' does not mean its automatically unconstitutional.
That's it. They then sent the case back to the lower court to try unconstitutionality on other merits.
This was a very limited ruling, and the government is still barred from enforcing the law.
This isn't much of a news story...
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So the Supreme Court thinks that "free speech" means "free if the majority of the populace likes it or agrees with it" (community standards). Isn't the First Amendment sort of nullified by a reading like that? If you're not allowed to make a statement or produce an artwork (including photographs) that the general populace doesn't agree with, then your speech isn't really free. It's just allowed or banned under the will of the government, which is the sort of situation that the original constitutional amendments were meant to put a stop to.
It's interesting to see how poorly understood the Internet is to the justices. The terminology is the same as if they were using "local community standards" to determine if a strip club should be allowed. That works when you are talking about a place with physical presence, but are we now going to apply the "local community standards" of some enclave of rich religious puritans to every internet user? I'm a member of a church who's "community standards" would reject most PG-13 movies (and in fact has specially edited versions of popular movies made to prevent the members from fleeing to R rated movies and "corrupting" themselves).
Let's hope that subjecting those who did not agree to a strict "community standard" themselves to the harshest that can be found turns this around...
Sig under construction since 1998.
Actually, you're wrong.
;)
The rights ARE presumed, and then Congress is forbidden from abridging them.
Reread the Constitution
The single largest problem with your argument is that the constitution itself * explicitly * states that rights are *not* granted but are presumed.
In fact, this is the single fundamental point at the center of all American law and politics and if you don't understand that you understand nothing of our legal society.
What's more, the constitution is document that not only reserves *all* rights to the people but exists almost entirely to define the *restrictions* on the action of the government, *not* the people!
KFG
Basicly the supreme court ruled against the ACLU's argument that the "community standards" were unconstitutional, but left the rest up to the lower coutrs to decide. This may bounce back to the supreme court at a later date, but for now it's been repremanded back to the federal circuit.
The injunction is still in place which means that the law cannot be enforced currently.
- H.R. 4239, which makes it a felony to distribute any kind of sexually explicit material to a user who does not register with a government-sanctioned age verification service (like AdultCheck).
- H.R. 4551, which outlaws the creation and distribution of "electronic burglary devices" such as system cracking scripts and port scanners.
- H.R. 4608, which taxes all sales of goods over the internet that originate overseas.
- H.R. 4277, which requires all ISPs to keep 6 months of records of all user activity and give law enforcement access to the records without a court order.
The list goes on. Naturally most of these will never become law, but statistically at least a few are likely to pass and make the internet that much more repressive. It's high time to vote Libertarian and try to preserve the few remaining liberties we actually have in this country.In particular, we know that there have been strategic efforts to prosecute purveyors of "adult" materials in the "least tolerant" communities.
Since it is technically impossible to know what community a web visitor is in (thanks to AOL and other proxy servers), the end result is simple: nobody can offer ANY "adult" materials to anyone in the world, unless those materials are acceptable under the community standards of the most conservative community in the United States.
The real goal, of course, is not to prosecute violations of this law -- it is to create a system that strongly deters creation or distribution of ANY adult content online. By imposing an impossible standard to prevent access by minors, the law effectively closes off access to everyone.
It would be interesting to see an analysis of the current minimum costs associated with starting an adult business, even ignoring the cost of legal advice and any costs associated with harassment by local law enforcement. I suspect the costs are quite high, especially for a firm producing original content. The bottom line, in my view, is that our government is imposing the moral views of a few to strongly discourage and often prevent access to adult materials wanted by the majority.
-- http://www.MarkWelch.com/ Pleasanton California
The COPA has nothing to do with child porn. It restricts *adult* material that *may* be viewed by a minor. In other words, " dirty pictures."
By applying " community standards" bikini pinups could be all that is needed to invoke prosecution under COPA.
It's the disturbing sort of law that makes it illegal to distribute the sort of material it's perfectly legal for the intended recipient to possess, even under the standards of the supposed "community."
KFG
So how do we contribute to Judge Steven's election campaign, and get rid of the other 8?
Oh, wait, they're appointed. Rats. His point on how this means sites would have to cater to the least permissive denominator is darn insightful.
Clearly, in most cases there's going to be a lag between internet-saavy judges and reality, even moreso with politicians (as politicians cycle through quicker than high-level justices).
A.
Actually, the Constitution does not grant anyone any rights, nor was it ever intended to. The U.S. Constitution was written to limit the ability of the Government to infringe on your rights. The concept of your rights is not debatable, you have certain unalienable rights.
Therefore, this speech is colored by the other contents of the Constitution, including the possibility of limiting "Such Speach as may be Found Hurtful to the Citizens of the Nation." I think this falls into the "hurtful" category pretty clearly. I'm not going to argue against this. Our children are too precious to sacrifice them at the altar of free speech.
I'm not going to argue that exposing kids to hardcore pr0n isn't harmful... it is. However, I am going to argue that it's dangerous ground when we try to "insulate" kids from the realities of the world via legislation. Where do you draw the line of what is acceptable? Is non-sexual nudity OK?
I feel the real issue of contention is this: It's not the Government's business what sites my children view. It's *MY* business, and as a parent it becomes my job to filter what my kids see on the Net, on TV, in games, at the movies, etc.
It doesn't take a village to raise a child, or government, it takes parents who care.
You could not be more wrong. The Bill of Rights reiterates some of the rights you are born with. It does not give you those rights. Those rights can not be taken away. The Constitution did not even mention those rights origially. They were added after the fact because of great concern about government abuse (those guys were pretty damn smart, in my opinion, and correctly guessed the future).
Even if Congress tried to abolish the Constitution, we would still have those rights. We would also have a civil war.
-- Will program for bandwidth
So we can talk freely only with people whose identities we can prove we have verified. And anything I might suggest (involving a Coke can and a Justice) here could land me and/or the proprietors in jail because some kid might read this in a jurisdiction where it's only considered proper to use Pepsi, and perhaps even one so backwards that only bottles are acceptible.
BTW, don't we now know that the great trove of old paintings of eroticized, crucified saints and Jesus lead directly to sexual abuse of children by priests? Should these images, too dangerous even for priests, be allowed before children in any context?
This Court should be impeached for its conduct in the last election. Then we need a tolerable president to appoint a new one.
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"with their freedom lost all virtue lose" - Milton
Obviously, you've never done a search for "free movies" on google. I've watched my 11 year old brother stumble across porn sites while searching for video games on the net. Pornographers explicitly design their pages to be found by children - they include keywords like "free games" and "free movies" which have absolutely nothing to do with the content they display. Furthermore, the pages are loaded with annoying popups that just won't go away. No, the kid isn't technically hypnotized, but curiosity is a strange and powerful thing - especially for children, who often lack both discretion and willpower. Even if a child has enough willpower to hit the back button, 30 seconds later, another site will popup, and this process goes on until the kid shuts down the browser. The notion that parents can control what their children see on the computer while surfing the web is intrinsically naive. Even an innocent interest in cars or video games can inadvertently lead a child to a porn site.
The society for a thought-free internet welcomes you.
Sig: What Happened To The Censorware Project (censorware.org)
Pornographers explicitly design their pages to be found by children - they include keywords like "free games" and "free movies" which have absolutely nothing to do with the content they display.
Now, let's assume for a moment that this is true. Why in the world would a "pornographer" design a site to be accessed by children? Pornographer's have to pay for bandwidth, and children do not possess credit cards and therefore, cannot make any online purchases. Therefore, you are stating that a pornographer would go out of his or her way and actually pay to have children see pornography even though they stand to gain nothing finically from the transaction.
Let me address the obvious, "Hook them while their young argument too." To attract children who are we'll say, 13-15, a pornographer would have to hope to instill a desire to see porn in the child for the next 3-5 years! Even then, chances are an 18 is not going to have much as far as credit cards are concerned.
Did you ever think that pornographers who use keywords like "free games" and "free movies" are going after adults who are searching for those items? I fail to see why a pornographer would explicitly try and attract children to their site. In fact, most pornographers try to dissuade children from accessing their sites or at least, give that appearance in order to appease the masses.
At any rate, I would also like to ask you to quote 1 peer-reviewed study that shows harm caused to children by exposure to pornographic material.
Regardless of whether you agree with the material (or if you think it is moral), the only time the government has the ability to regulate expressions of speech is when they are proven to directly cause harm to the community. The fact is that their does not exist a single scientific study to show this.
That is why "community-standards" are such a dangerous thing since this amounts to "majority-standard." The only standard that should be regarded by the government is objective-standard.
Oh yeah, but then we would actually live in a free country...
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