Vice Squad
Wednesday, June 30, 2004

Having wasted your time with a long post about last year's library internet porn case, I feel obligated to at least mention how it is relevant for yesterday's decision regarding the Child Online Protection Act (COPA).

The majority upheld the Third District's affirmation of the District Court's preliminary injunction because content-based speech restrictions are presumptively invalid. Once contested, the government has the burden of overcoming that presumption, in part by showing that there do not exist plausible alternatives that serve the same end while simultaneously being less restrictive upon speech. The government failed to make such a showing, and therefore, the Court ruled, the District Court did not abuse its discretion when it issued the preliminary injunction.

The main alternative considered by the District Court in making its decision was software that blocks or filters objectionable material, and here is the chief connection to last year's library case. Specifically, the previous case helps to establish the viability of a filtering alternative. The Court proceeds as follows. Perhaps it might be argued that filters are not really a plausible alternative, because the government cannot order people to use filters on their home computers, but (perhaps) the government can order commercial porn websites to set up an age check or credit card screen. According to the majority opinion...
That argument carries little weight, because Congress undoubtedly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and libraries to use them. United States v. American Library Assn., Inc, 539 U. S 194 (2003). It could also take steps to promote their development by industry, and their use by parents. It is incorrect, for that reason, to say that filters are part of the current regulatory status quo. The need for parental cooperation does not automatically disqualify a proposed less restrictive alternative. Playboy Entertainment Group, 529 U. S., at 824. ("A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act"). In enacting COPA, Congress said its goal was to prevent the "widespread availability of the Internet" from providing "opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control." Congressional Findings, note following 47 U. S. C. §231 (quoting Pub. L. 105-277, Tit. XIV, §1402(1), 112 Stat. 2681-736). COPA presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties.
A second rationale for preferring the less-restrictive filter alternative comes from a government commission that issued a report on controlling Internet porn two years ago -- and the commission, which itself was established via COPA, found that filters were more effective than age-verification requirements.

Justice Breyer's dissent also invokes the library case. He points out that filters are currently part of the scene, and he views the (or at least one) relevant question to be whether or not "filters plus COPA" does a better job at protecting kids from harmful-to-minors material than does the status quo of filters alone. Breyer quotes from Justice Stevens's dissent in the library filters case, to help establish the point that current filters exclude much material that is not objectionable while allowing through some obscene images.

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