Tuesday, February 17, 2009

Does old ruling Ginsberg v. New York matter to COPA?

There is a twist in the recently revised “Bloggers’ Legal Guide” published this month by the Electronic Frontier Foundation. In talking about students’ rights, EFF poses a question about a minor student’s posting “adult” materials on his or her own (off school) blog. EFF says that obscenity law is interpreted differently with respect to minors. It appears in context that the law may be taken differently when posted by a minor, as well as when sold to a minor or given away to a minor.

Of course, COPA (the Child Online Protection Act of 1998) was all about this issue on the Internet and the Web, and it has been overturned and the free speech victory has been upheld all the way to the Supreme Court, as covered already. EFF refers to a 1968 case in New York State, Ginsberg v. New York, about the sale of girlie magazines to a teenager. There is a slightly simpler definition of “harmful to minors” than in COPA, specifically: “(1) appeals to the prurient, shameful, or morbid interest of minors, (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and (3) is utterly without redeeming social importance for minors.”

It’s still not clear to me what the relevance of Ginsberg is to the recent COPA litigation and opinions, because Ginsberg occurs in the physical world, but EFF here is still talking primarily about blogging on the Web. The EFF reference is here, and the Findlaw copy of the 1968 Supreme Court Opinion is here.

In fact, the Opinion (see the link from the March 22, 2007 entry on this blog) Judge Reed discusses Ginsberg on p 77, in paragraph 43. Here the judge distinguishes between the physical world and the paradigm of the Web.

My Feb. 14 longer posting on the EFF Legal Guide is on my main blog, here.

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