Thursday, December 27, 2007

COPA: "as a whole" on the Internet is a vague concept in other legal concerns, too


The Opinion by Judge Lowell Reed striking down COPA, the Child Online Protection Act of 1998 (please see March 22, 2007 on this blog, links in the archives, for appropriate hyperlinks) addresses the ambiguous phrase “taken as a whole” with respect to Internet sites only once, in paragraph 44 on p. 78. He writes:

“COPA does not define the term “as a whole” and the plain language of the statute does not lend itself to obvious definition of “as a whole” as might be applied on the Internet. 47 U.S.C. &231. The Third Circuit concluded in a dictum that the language of COPA clearly demonstrated that each individual “communication, picture, image, graphic image file, article, recording, writing or other matter of any kind” should be considered without context. ACLU 322 F 3d at 252. But, as Justice Breyer noted in his dissent [2004], “as a whole” has been traditionally interpreted in obscenity cases to require an examination of the challenged material within the context of the book or magazine in which it is contained. Aschroft, 542 U.S. at 681 (citing Roth v. U.S. 354 U.S. 476, 490 (1957)). As Justice Kennedy noted in his concurring opinion, “The notion of judging work as a whole is familiar in other media, but more difficult to define on the World Wide Web. It is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multipage Web site, or an interlocking set of Web sites.” 535 U.S. at 592-93. Thus, with the disparate views noted above, and as discussed below, in the context of the Web, I conclude that use in COPA of the phrase “as a whole” without any further definition, is vague.”

This “as a whole” or “context” problem becomes important in reputation-related issues that are now being reported by the media as a concern to employers. As I’ve noted on some other blogs (especially my main blog – look in December and July this year), employers sometimes have knee-jerk reactions to small amounts of unfavorable material that turn up on the web about an associate, sometimes written by others, sometimes placed there by the associate himself, believing that the material has some legitimate social or political value in a context that the associate believes other visitors will already know about. The name that is evolving for this problem is “implicit content” and it may also invoke what others know or believe about the speaker’s circumstances. It’s conceivable that in some cases this notion could cause isolated examples of speech to meet the definitions of legal enticement, a problem when minors access content that goes beyond COPA.

There are other reasons besides COPA, then, to decide when the whole is more than the sum of its parts. The Web is definitely non-Euclidean.

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