Thursday, November 09, 2006

COPA: some important concepts need to be reiterated

A couple of points come up in reviewing the 2002 Supreme Court Opinion (which had sent COPA back to the Third Circuit after rejecting the Third Circuit's detour into the area of "community standards").

One of them is that the Court did seem to have a notion for what "pornography" means. It has often been said that this term is undefined in the law, and for that reason the three prongs of COPA are laid out the way they are ("with respect to minors").

If fact, in discussion the Communications Decency Act, much of which the Supreme Court threw out in 1997, the Court wrote in 2002:

" ...this Court found that the Communications Decency Act of 1996 (CDA)Congress first attempt to protect children from exposure to pornographic material on the Internetran afoul of the First Amendment in its regulation of indecent transmissions and the display of patently offensive material."

This particular word, in some declension, appears over 25 times in the Opinion, so the Court obviously believes that the word has a relatively concrete meaning.

Later the Court writes

"It also forbade any individual from knowingly sending over or displaying on the Internet certain patently offensive material in a manner available to persons under 18 years of age. See 223(d). The prohibition specifically extended to any comment, request, suggestion, proposal, image, or other communication that, in context, depict[ed] or describ[ed], in terms patently offensive as measured by contemporary community standards..."

Note that comments or suggestions could be invalidated or made illegal, as well as images or teasers themselves.


"In addition, because the CDA did not define the terms indecent and patently offensive, the statute cover[ed] large amounts of nonpornographic material with serious educational or other value. Ibid. As a result, regulated subject matter under the CDA extended to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library..."

What seems clear to me, it that the Court understands the meaning of the "p word" but that what is prohibited to be placed within the easy sight distance of minors could go beyond the "p concept". Conceivably it could include material that would disrupt the socialization of minors into the family unit. At least, a jury, encouraged by a politically ambitious prosecutor, could be manipulated to believe that COPA was intended to accomplish that, even if the Government maintains today that the HTM concept does not mean that.

Later the Court writes about the first COPA injunction in Fen 1999:

“The District Court granted respondents motion for a preliminary injunction, barring the Government from enforcing the Act until the merits of respondents claims could be adjudicated. 31 F.Supp. 2d, at 499. Focusing on respondents claim that COPA abridged the free speech rights of adults, the District Court concluded that respondents had established a likelihood of success on the merits. Id., at 498. The District Court reasoned that because COPA constitutes content-based regulation of sexual expression protected by the First Amendment, the statute, under this Courts precedents, was presumptively invalid and subject to strict scrutiny. Id., at 493. The District Court then held that respondents were likely to establish at trial that COPA could not withstand such scrutiny because, among other reasons, it was not apparent that COPA was the least restrictive means of preventing minors from accessing harmful to minors material.”

That is, content-based regulation, due to the prevelance of certain concepts or ways of assessing people, is itself presumptively unconstitutional, and legitimate state interest in protecting minors (or, say, at least indirectly, good order and discipline in public school systems) must be accomplished with the least restrictive means available with known or expected technology.

This is reiterated in the 2004 Supreme Court Opinion, where early in the document the Court writes

"When the plaintiffs challenge a content-based speech restriction, the Government has the burden to prove that the proposed alternatives will not be as effective as the challenged statute."

It's important to note that restricting Internet content about certain topics because of the "free entry" and because of the ease with which minors will find it (given the practical policing ability of many parents), certain ideas (for example, faith-based ideas) will be disseminated within the culture more easily than others, and the integrity of political and social debate, at least with respect to intellectual honesty and objectivity, will become compromised.

All of this goes to the fear of many of the plaintiffs that valuable content (from a social and political viewpoint) can be lost from debate if Congress were allowed to use "the lowest common denominator" in protecting children. Again, there is the question, "who pays" and "am I my brother's keeper?" In a pluralistic society, for example, you have to accept the idea that information that helps prevent transmission of sexually transmitted diseases or information that enhances sexuality (including within marriage) of disabled persons or information about non-gender-based psychological polarity (in my sites) is valuable, even if this goes against notions of family, religious and social solidarity of many people.

In my case, as evident throughout the blogs and sites, the issue is even more subtle: it is about self-expression v. relationships in the definition of the human personality. It is the psychological chicken and egg.

This will turn up in other blogs soon, as one I will put up about teachers today.

Related post about COPA and teachers, here.

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