ACLU v. Gonzalez: It’s not About Porn, it’s About Censorship

Cyberlaw

The ACLU filed a suit Monday, the latest in its ongoing challenge of COPA, the Child Online Protection Act. Frankly, I’m surprised at how little attention this is getting–particularly in the tech world. (It hasn’t been completely ignored; here’s a helpful summary.) Maybe it’s because of how the issue seems to be framed: “oh, here we go again, the ACLU wants to make sure kids get all the porn they want.” If so, that’s too bad. Nobody in the suit is arguing that kids should have access to sexually explicit material. In fact, the ACLU proposes measures it says will actually be more effective in restricting kids’ online access to objectionable material. Whenever two important interests conflict–here, protecting children from harmful material and constitutionally protected free speech–it’s crucial to be careful in the laws we adopt.

The problem with COPA as presently drafted is that it’s a classic case of ignoring the unintended consequences of an otherwise good idea. To some extent, it’s not surprising. I mean, the porn industry isn’t exacly a sympathetic victim. Anything labelled “anti-porn” is bound to find plenty of support. But that support should not extend to giving law enforcement broader authority than is necessary–particularly when narrower powers are just as effective. Sadly, that’s just what’s happening. According to the definition of prohibited material found in the statute, material that the government agrees is beneficial, or at least not harmful (for example, information on sexual health, fine art that contains nudes, frank discussion about being gay, and irreverent sites like UrbanDictionary.com), is restricted. On the underinclusive side, a (very) large portion of porn is hosted outside the US and would not be subject to the law. Sounds pretty sloppy, whether or not the intentions are good.

Fortunately, in a series of cases, federal courts–including the Supreme Court– have agreed. When it comes to something as serious as restricting constitutionally protected free speech–even for a purpose as important as protecting children from harmful material–the constitution requires Congress to use the least restrictive method. (See e.g., Reno v. ACLU, 521 US 844 (1994).) In the line of cases in which this one is merely the most recent, courts have repeatedly been skeptical of COPA’s constitutionality. This trial will look at changes in technology that have occurred in the last five years that might support the idea that COPA is overly broad. According to Shannon Duffy, the ACLU is likely to win this one too.

The ACLU has suggested a wider use of filters, perhaps even supplemented by a government registry of restricted sites or a statutorily-required mark that would make filter identification easy. It would also be able to catch foreign Internet material. The government claims that filtering technology is too ineffective or difficult to use to be a good substitute.

Personally, I think the ACLU has the better of the argument. Certainly it’s enough to suggest that COPA is not the means of furthering the child protection aims in the way that’s “least restrictive” of free speech. It would be fantastic to debate effective ways of keeping sexually inappropriate material from children on the Internet. But let’s make laws based on effectiveness, not just on good intentions.

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