The End of COPA

COPA, the Online Child Protection and Safety Act, has finally met its end. The 3rd Circuit repeatedly struck down the statute and the United States Supreme Court has finally put the 1998 Act out of its misery. From SCOTUSBlog:

The Supreme Court on Wednesday refused the federal government’s request to salvage a ten-year-old law seeking to ban minors’ access to sexually explicit material on the World Wide  Web.  Acting on that law for the third time, the Justices simply declined to review a Third Circuit Court decision last July striking down the Child Online Protection Act of 1998.  The Justices’ action came without comment and with no noted dissents in Mukasey v. American Civil Liberties Union, et al. (08-565).

The attempts to regulate the Internet to protect children have continually overreached resulting in judicial decisions findings such laws unconstitutional. Jack Balkin added this to the story:

COPA tried to avoid the fate of the CDA by limiting itself to websites for commercial purposes. Nevertheless, the 3d circuit concluded that first party filters installed by parents were a less restrictive alternative to imposing criminal penalties on website operators if they did not actively prevent minors from viewing prohibited content.

The Third Circuit's decision is a good one. But the most important issue for me has not been the doctrinal question of whether filters are a less restrictive alternative under the first amendment but rather a question of network design. Who should bear the burden of filtering and blocking unwanted content in an digital environment and where should the filtering decisions be located? In my view it is much better to put the filtering decision with the end user, who can better tailor filtering to their needs. (In this case, the end user is the parent who decides on the conditions of the child's access)....

Generally speaking, the Internet should place filtering decisions and responsibilities on the end user, not the publisher of the content. There are exceptions to this basic rule, but sexually explicit speech is not one of them.

While I agree with Balkin, I wonder if Congress will eventually find a law that provides some limits that the courts find acceptable. Crime and Consequences and ACSBlog are also covering the story.