Friday, November 02, 2018

Reviewing the 2007 COPA opinion as to "megaphone without gatekeepers"



Let me go back for a moment to the March 22, 2007 decision by Lowell Reid in striking down COPA, the Child Online Protection Act of 1998. 
  
It is noteworthy that the Third Circuit upheld his opinion on July 22, 2008 (Wired story )

On January 21, 2009, the US Supreme Court refused to hear the case (ironically, one day after Obama’s inauguration). Is there any reason to wonder if the current Supreme Court, with its more conservative makeup, would ever want to reconsider it?  It is settled law.

There is a lingering question, in my mind at least, as to whether the First Amendment (in combination with the Fourteenth) automatically incorporates the right to use a megaphone to reach the entire planet without a gatekeeper controlling what gets published, for other considerations, especially such as controlling fakes news or propaganda manipulation.

The actual censorship and de-platforming is the result of the actions of large privately owned (often publicly traded) tech companies, not governments, in conjunction with cultural pressures, which can include international pressure.

Conceivably in the future bodies like ICANN might have to consider this question in a philosophical sense.

One problem is that the capability to broadcast (and bypass the practical economic supervision of the legacy trade publishing industry and literary agents) should be viewed as part of the free speech right since it did not exist in a practical sense until the late 1990s, when the WWW opened up to users after Congress passed Section 230 in 1996 (shielding downstream liability for platforms).  AOL opened up Hometown in October 1996 – I remember that Sunday afternoon well. 
  
Although the COPA opinion does seem to state that Congress cannot provide content-related restrictions on the speech itself (even “hate speech”) once a distribution method has been technologically enabled, the opinion does not preclude the possibility of restrictions on who can have this kind of enabled access based on other factors, like open financial accountability, which might be relevant to stopping fake news. 

One other historical fact is born out -- the "Smallville Problem" -- minors really do vary as to their maturity.  Look at the Parkland H.S. activists and what they have accomplished.