CDT POLICY POST Volume 10, Number 10, June 29, 2004 A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology (1) Supreme Court Reaffirms First Amendment Protection of Internet Communications (2) Six Years of Litigation with Nothing Accomplished to Protect Children Online (3) Court Recognizes that Education and User Control, Not Legislation, is Key to Protecting Children --------------------------------------- (1) Supreme Court Reaffirms First Amendment Protection of Internet Communications In a major victory for free speech online, the Supreme Court in the case of Ashcroft v. ACLU affirmed an injunction blocking enforcement of the Child Online Protection Act (COPA). The Court's decision reaffirmed that the Internet warrants the full protection of the First Amendment. The Court wholeheartedly recognized the benefits of voluntary filtering by parents and families as an effective way to protect their children from harmful Internet content in a manner that is consistent with their own values, but still allows adults access to constitutionally protected speech. COPA, adopted in 1998 but blocked from taking effect by lower courts, would make it a crime for anyone to make any Web communication for commercial purposes that is "harmful to minors" unless the person has used technological means to prevent access by minors (such as requiring a credit card). COPA would impose criminal and civil penalties of up to ,000 per day for violations. CDT has opposed COPA because it threatens to chill constitutionally protected speech including a wide range of social commentary and health information. The Supreme Court recognized that the criminal nature of COPA creates a high risk of chilling protected speech. According to Justice Kennedy, "[w]here a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial." When a content-based speech restriction is challenged, the government must "shoulder its full constitutional burden" to prove that the proposed alternatives will not be as effective as the challenged statute, to ensure that speech is restricted no more than is necessary to accomplish Congress' goal. The Court found that the government had not met its burden, and that filtering by parents and families was a less restrictive means of protecting children that is more effective than COPA. The Court ordered that the case be returned to the lower court for a full trial of the factual questions raised by the decision. --------------------------------------- (2) Six Years of Litigation with Nothing Accomplished to Protect Children Online The Supreme Court's decision affirmed a lower court ruling that enforcement of the Child Online Protection Act should be enjoined because the statute likely violates the First Amendment. The Supreme Court held that the Government failed to prove that the proposed alternative will not be as effective as the challenged COPA statute. Going even further, the Court opined that "[f]ilters may well be more effective than COPA." In 1998, the district court found that COPA would violate the First Amendment because of its chilling impact on protected speech. The district court focused its opinion primarily on the argument that plausible, less restrictive alternatives to COPA are available particularly in the form of filtering technology. On appeal, the Court of Appeals also found COPA to be unconstitutional, but based its decision on a theory that the District Court had not considered. In May 2002, the Supreme Court found fault with the reasoning of the Court of Appeals, but the Supreme Court left in place an injunction against the law. On reconsideration, in March 2003, the appellate court again ruled against the law, finding numerous constitutional problems with it. In a detailed decision, the appeals court determined that COPA would force Web publishers to block a wide range of legal material and was not the least restrictive means of protecting children online. The Justice Department appealed, bringing the case back to the Supreme Court. In its just-released opinion, the Supreme Court agreed that the District Court's 1998 decision to enjoin COPA had been correct. Taking COPA together with the 1996 Communications Decency Act (which was struck down by the Supreme Court in 1997), Congress has spent eight years attempting to use criminal laws to censor online speech on the Internet that is lawful for adults to access. The Supreme Court's decision makes clear that this approach has been a failure. --------------------------------------- (3) Court Recognizes that Education and User Control, Not Legislationn, is Key to Protecting Children Throughout the course of the challenge to COPA, CDT has argued that the most effective way to protect children online, and the means least restrictive of free expression, is to give families and teachers resources that allow them to control what children see and do online. This approach enables the protection of children while respecting the First Amendment and the diverse sensibilities of American families. The Supreme Court's decision reflects the findings of two major, independent studies commissioned by the Congress: the COPA Commission, a study mandated by COPA itself, and a report of the National Research Council (NRC) of the National Academy of Sciences. Both studies concluded after exhaustive research that legislation will not solve the problem of children's access to objectionable content via the Internet, but rather that technology like filtering software in the hands of parents and teachers, along with educational efforts, offer the most effective means of protecting children online. Citing the COPA Commission directly, the Supreme Court emphasized the importance of this user control approach to guiding children's online experience. The Court acknowledged not only that the law will not solve the problem of children's access to objectionable content via the Internet, but that it is not the least restrictive means of furthering the government's goal of protecting children from objectionable content. The Court implied, however, that "Congress may act to encourage [the use of filtering and blocking technology] . . . by promoting the development of filters by industry and their use by parents." Many Internet service providers and other companies already offer powerful filtering, blocking, and monitoring software that parents can use to protect their children from offensive material. CDT has worked with a wide cross-section of the Internet and public interest communities to compile parental tips, filtering tools and other online safety resources at the educational site http://www.getnetwise.org. COPA now returns to the federal district court in Philadelphia for further proceedings. CDT expects to file briefs in the case, and welcomes this opportunity to demonstrate, once again, that user-based approaches remain the most effective way to protect children and respect free expression online. The 2000 report of the COPA Commission can be found at http://www.copacommission.org/report/ The NRC study, "Youth Pornography, and the Internet" (2002), is online at http://www.nap.edu/books/0309082749/html. --------------------------------------- Detailed information about online civil liberties issues may be found at http://www.cdt.org/ . This document may be redistributed freely in full or linked to http://www.cdt.org/publications/pp_10.10.shtml . 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