WASHINGTON, DC — The Center for Democracy & Technology has stepped up its assault on the Child Online Protection Act, calling the law ineffective, unconstitutional, overly burdensome on Web publishers, and overbearingly restrictive of lawful adult speech. The organization is putting its considerable weight where its sentiments are by publishing policy statements and filing court briefs, among other things.In early November, representing itself and 17 other groups, the CDT filed an amicus brief in a nine-year-old case that has reached the Supreme Court twice only to be remanded back to lower levels. It now sits before the Third Circuit Court of Appeals in Philadelphia on an appeal filed by the government after the trial court permanently enjoined the law.
The CDT calls the challenge “the most significant internet free speech case since the Supreme Court struck down part of the Communications Decency Act in 1997.” The amicus brief argues that “COPA places unconstitutional burdens on creators and distributors of legitimate Web content, including websites focusing on sexual identity, health, and art. Other strategies are more effective than COPA at protecting children from online content deemed inappropriate for them, and also impose fewer restrictions on lawful adult speech.”
The brief also urges the court not to rule COPA applicable to overseas websites, as this could invite reciprocal foreign censorship, thus creating a global “race to the bottom against Internet freedom.”
Among the CDT’s most strenuous objections to COPA are that the statute embodies “murky” language – like “harmful to minors” – that would be nearly impossible to define. In addition, because the law fails “strict scrutiny” tests required of any law that attempts to regulate actual speech instead of when it is uttered and the mechanism by which it is delivered, COPA risks sweeping in a large cross-section of internet speech that is perfectly lawful for adult consumption even though it might be considered by some observers to be “harmful to minors.” The CDT favors technological and educational means of that will empower users to regulate potentially harmful speech instead of banning it altogether.
COPA represents the second time congress has attempted to reign in adult speech on the internet. The Communications Decency Act was the first, and large portions of it were struck down 10 years ago. Consequently, if COPA fails in the courts (and there are potentially two more years of challenges up to the Supreme Court level remaining before the current case is decided), the CDT urges Congress not to make a third attempt to enact similar legislation.
“Instead, Congress should take the opportunity to embrace a fresh, constitutional approach that will actually be effective in protecting children from online content that may be inappropriate for them but that is perfectly legal for adults to distribute and access,” a CDT policy statement states.
