** Continued From: Court In Session! - Part #2
I explained in part two of this series how this case affects adult webmasters directly. I illustrated the implications to the adult Internet if the law (at the heart of Ashcroft v. the ACLU) is freed from its injunction. That law is the Child Online Protection Act or COPA.
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"Right now, in the US, obscenity is determined by local community standards." |
COPA passed through both houses and was signed into law by President Clinton in 1998. The American Civil Liberties Union cited civil rights violations inherent in the language of the law. They and others (of the free speech ilk) deemed it too broad and too vague. The ACLU et al brought suit against COPA and the case was heard in the 3rd US Court of Appeals.
The appeals court agreed COPA "contains a number of provisions that are constitutionally infirm." Namely, they cited the vagueness of the term "material that is harmful to minors". The appeals court set and injunction against COPA and the case went to the Supreme Court for the first time.
The Supreme Court reviewed the law and the US Court of Appeals decision. The Justices decided that the Appeals Court acted too hastily with their injunction. They stated that COPA could not be judged unconstitutional simply because there’s no high court definition for what is and what is not harmful material.
The Supreme Court sent the case back to the 3rd US Court of Appeals. For a second time the appeals court upheld the injunction against the Child Online Protection Act. Then the US Justice Department filed a petition for a writ of certiorari and has been granted their day in court to fight for the life of COPA.
What the ACLU and others find wrong with COPA is this:
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Right now, in the US, obscenity is determined by local community standards. Way back a long time ago, the Supreme Court washed its hands of the responsibility of defining obscenity. They only go as far as to say "obscene speech is not protected speech".
The court very clearly leaves the task of determining obscenity up to individual cities, counties and states. A twelve-person jury in LA County might find an adult bookstore to be within the confines of protected speech. Yet a jury in Elk City Oklahoma might judge an adult bookstore to be guilty of violating obscenity laws. The flaw in COPA is that it tries to apply community standards laws to the Internet. The US Court of Appeals -as well as free speech advocates- cite the world wide reach of the Internet and how impossible it would be to bestow community standards upon it.
When the Supreme Court originally heard the COPA case and sent it back to the appeals court, the justices wrote about community standards. Some of them agreed about the possible futility of those standards on the World Wide Web.
They also brought up concerns about another point in the wording of COPA concerning proprietorship of offending sites. Justice Kennedy wrote:
"It is crucial, for example, to know how limiting is the Act’s limitation to "communication for commercial purposes." He went on to write "Indeed, the plain text of the Act does not limit its scope to pornography that is offered for sale; it seems to apply even to speech provided for free, so long as the speaker merely hopes to profit as an indirect result."
The Supreme Court will hear Ashcroft v. the ACLU sometime during this current session. Their possible ruling is anybody’s guess. Will they uphold the injunction? Will they decide COPA is unconstitutional? Will they decide that the adult Internet is a separate community with enforceable standards? Will this court make an absolute definition of "harmful material"?