The Center for Democracy and Technology in Washington DC has submitted an amicus curiae brief to the United States Court of Appeals, District of Columbia Circuit (federal circuit), for the appeal by Wodhull at all to a dismissal of their lawsuit which would seek to have FOSTA (the “Backpage law”) declared unconstitutional. The link is here.
What is striking is that the document gives a three page history, from pages 6-9, of the attempt to protect minors on the Internet with the original Communications Decency Act (CDA) of 1996, much of which was struck down by the Supreme Court in June 1997. I actually attended the oral arguments on a snowy March day in March 1997 from the three-minute line and heard the government’s arguments (no cell phones in those days). It's important to note that Section 230 from that law did remain and that is very important today (in fact that is what FOSTA weakens).
It follows (on about page 7) with the history of the Child Online Protection Act (COPA) itself, one dat of which I attended the trial of in Philadelphia in October 2006, via Amtrak, with a good Philly Cheesestake lunch with the lawyers that I still remember. The judge mentioned the concept of “implicit content” from the bench that day, and it’s unusual that it comes up.
The CDA SCOTUS opinion does compare user speech on the Internet to pamphleteering or leafleting in earlier periods of American history (a topic that came up in a speech at the CDT forum in Washington Dec. 7, 2018), in conjunction with how the post office and newspaper industries worked in these time. Yet I have wondered if there is a difference between protecting the content of speech, and protecting the right to self-distribute it.