more on Court Strikes Down Online Porn Law

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Herb Lin <HLin () nas edu>
Date: Sun, 09 Mar 2003 23:13:45 -0500
To: dave () farber net
Cc: Paul Lembesis <lembesis () emerson-associates com>
Subject: Re: [IP] more on Court Strikes Down Online Porn Law

Paul writes that:

But the real message is that the process of Congress attempting to find the
"right" formulation and the courts' reviews of these laws are defining our
understanding of what is and is not allowed.  There is "something" out there
that is harmful to minors.  If Congress can define that clearly and
precisely, the Courts will uphold a prohibition.  That's a big "if", but
there is nothing in these decisions which says that it is impossible.  Each
decision has the effect of gradually clarifying what it would take.

==
The statement that "There is "something" out there that is harmful to
minors" is
not backed by any scientific consensus.  Further, the notion that there is
such
a thing that is "harmful to minors" per se was never decided by the Supreme
Court.  Rather, the court held that there was material that could be
regarded as
being
"obscene for minors" or "obscene with respect to minors."  "Harm" to minors
is
presumed and asserted, rather than being demonstrated.  (It may turn out
that
there is harm to minors, but that has yet to be demonstrated on a scientific
basis.)

Herb Lin
Study Director, NRC study of Youth Pornography and the Internet (see chapter
4
of that report).








Dave Farber <dave () farber net> on 03/07/2003 01:48:15 PM

Please respond to dave () farber net

To:   ip <ip () v2 listbox com>
cc:    (bcc: Herb Lin/NationalAcademies)
Subject:  [IP] more on  Court Strikes Down Online Porn Law




------ Forwarded Message
From: Paul Lembesis <lembesis () emerson-associates com>
Date: Fri, 07 Mar 2003 12:01:15 -0500
To: dave () farber net
Subject: Re: [IP] Court Strikes Down Online Porn Law

Dave,  The cite for the Third Circuit's COPA decision is:
http://www.ca3.uscourts.gov/opinarch/991324.pdf

I am not personally involved in the litigation, but I follow it closely.  To
me, the key is that the courts are gradually refining the types of
constraints that would be allowed on Internet speech.

In the past, the Supreme Court has held that laws restricting content that
is "harmful to minors" may be constitutional  and that if a law is based on
"community standards" that does not "in itself" make a law unconstitutional.

The Third Circuit is now saying that COPA is unconstitutional because it is
still too vague and too broad.  For example, the law doesn't adequately
define terms like content that "taken as a whole" is harmful to minors; that
"minors" is vague because it includes both 4- and 17-year olds, and that
"commercial" web sites are not well defined.

I think COPA is vague and broad, and that the Supreme Court will uphold the
Third Circuit's decision.  Of course, the specifics of the Supreme Court's
decision will be different in some respects.  Basically, just as the CDA was
unconstitutional, COPA will be unconstitutional too.

But the real message is that the process of Congress attempting to find the
"right" formulation and the courts' reviews of these laws are defining our
understanding of what is and is not allowed.  There is "something" out there
that is harmful to minors.  If Congress can define that clearly and
precisely, the Courts will uphold a prohibition.  That's a big "if", but
there is nothing in these decisions which says that it is impossible.  Each
decision has the effect of gradually clarifying what it would take.

Paul Lembesis

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