more on Court Strikes Down Online Porn Law

[Dave Farber <dave () farber net>]

------ 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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