Fall 2004-04 Supreme Court of the United States strikes down Internet censorship law
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Fall 2004-04 Supreme Court of the United States strikes down Internet censorship law

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Number 57
Fall 2004

Supreme Court of the United States strikes down Internet censorship law

In Ashcroft v. American Civil Liberties Union, 124 S. Ct. 2783 (2004), the Supreme Court of the United States declared that the Child Online Protection Act, 47 U.S.C. § 231, to be unconstitutional because it violates the freedom of speech guaranties of the First Amendment to the Constitution.




COPA was Congress’ second attempt to criminalize Internet speech, in its interest to protect minors. The first effort-the Communications Decency Act of 1996, 47 U.S.C. § 223-had also been struck down by the high Court in 1997.


COPA imposed criminal penalties of $50,000 and six months in prison to persons who posted in the World Wide Web, for commercial purposes, material that is “harmful to minors.” The law described such material in part as depicting actual or simulated sexual acts or contact, or the “lewd exhibition” of the genitals, or of “post-pubescent female breasts,” in a manner “patently offensive with respect to minors.”


Alternative controls


The Supreme Court made clear that certain speech protected by the First Amendment may indeed be regulated by the government. The constitutional question is what is the least restrictive alternative that can be used to achieve the purported goal. “The purpose of this test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished.” In this context, the Court considered technical means of protecting children from exposure to obscene material in the Internet.


Filtering software


The opinion alludes to blocking and filtering software not only as less restrictive than COPA, but as more effective as well. Filters allow adults to gain access to material that they have a right to see, and yet prevent minors from so doing. Furthermore, because COPA is an American law, it is powerless to deal with pornography originated anywhere else in the world, the Court added. A filter can prevent minors from seeing all pornography, not just that posted from the U.S. To avoid prosecution under COPA, all a U.S. pornographer would have to do is move the operation offshore. Congress could encourage the use of filters, and could take steps to promote their development by industry and their use by parents.


Age verification


COPA allowed a person to escape conviction by showing that he or she had restricted access by minors by requiring use of a credit card, debit account, “adult access code” or “adult personal identification number,” or “any other reasonable measures that are feasible under available technology.” The purported solution was rejected by the Supreme Court, who stated that such verification systems may be subject to evasion and circumvention, “for example by minors who have their own credit cards.”


The ineffectiveness of age-verification requirements was confirmed by the findings of the Commission on Child Online Protection, a commission created by Congress in COPA itself. It unambiguously found that filters are more effective than age-verification requirements. “Thus, not only has the Government failed to carry its burden of showing the District Court that the proposed alternative is less effective, but also a Government Commission appointed to consider the question has concluded just the opposite. That finding supports our conclusion that the District Court did not abuse its discretion in enjoining the statute.”

“The Supreme Court today struck down the Child Online Protection Act as an unconstitutional government attempt to censor free speech on the Internet. ‘Today’s ruling from the Court demonstrates that there are many less restrictive ways to protect children without sacrificing communication intended for adults,’ the ACLU said. ‘By upholding the order stopping Attorney General Ashcroft from enforcing this questionable federal law, the Court has made it safe for artists, sex educators, and web publishers to communicate with adults about sexuality without risking jail time.'”

– from an American Civil Liberties Union press release

© 2004 Goldman Antonetti