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©Copyright 2005 NCAC
WEB DESIGN
Jeanne Criscola Criscola Design
free speech first amendment censorship
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Upon
remand from the U.S. Supreme Court, the Third
Circuit Court of Appeals applied strict
scrutiny to determine whether COPA was constitutional.
It found:
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Protecting
minors from harmful material online is a compelling
government interest; |
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The
following provisions of COPA are not tailored
sufficient narrowly to pass strict scrutiny:
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“Material
that is harmful to minors” and
involves taking it “as a whole.”
Because the community
standards test is applied to this
aspect, COPA limits permissible material
to that approved by the most puritanical
communities. Also, considering that
the entire web is connected, it is puzzling
to think how one would determine what
the work as a whole includes. Furthermore,
COPA does not differentiate between
young children and older teenagers,
restricting all minors to the same standard
of material. |
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“Commercial
purposes.” The Court reads COPA
to include anyone using the web for
commercial purposes, even if the material
harmful to minors they post is not
part of their business or does not
yield profit. Therefore, this term
is not narrowly tailored either. |
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Affirmative
defenses. The Court finds that requiring
websites to acquire credit card information
or other verification that the user
is an adult impermissibly burdens speech
and will create a chilling effect, since
many adults will be unwilling to provide
identification before viewing such material.
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COPA
does not use the least restrictive means to
further the government’s interest in
protecting minors from harmful material online.
The Court found that individual, voluntary
blocking software was at least as effective
as COPA, particularly considering children’s
continued access to foreign websites under
COPA. |
The
Court further determined that COPA was unconstitutionally
overbroad.
The overbreadth doctrine prohibits the government
from banning unprotected speech if a substantial
amount of protected speech is prohibited or chilled
in the process. It examines whether a statute
encroaches upon speech in an over-inclusive manner.
COPA is overbroad:
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Because
the statute’s definition of “minor”
is all-inclusive and provides no age ceiling,
a web publisher will have to guess as to the
oldest age to which COPA possibly applies,
creating a chilling effect on constitutionally
permissible speech. |
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Because
persons making communications “for commercial
purposes” are held liable, this definition
does not sufficiently narrow the scope of
COPA. In fact it subjects too many web publishers
to potential liability. |
| • |
Because
the affirmative defenses require verification
of a user’s age and often identity,
this creates a chilling
effect on adult’s exercise of permissible
speech and web publishers’ posting because
of the heavy financial burden imposed by the
cost of processing credit cards provided by
users to verify such. |
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The
“community standards” test further
exacerbates the overbreadth of COPA by subjecting
everyone to the standards of the most restrictive
community. |
The
Court does not restructure COPA to make it constitutional
because doing so would require so much effort
that it would be acting more like a legislature
than a court. |
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| This
case shows the limits of Congress’s ability
to censor materials on the internet. |
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| These
materials are not intended, and should not be used, as
legal advice. They necessarily contain generalizations
that are not applicable in all jurisdictions or circumstances.
Moreover, court decisions may be superceded by subsequent
rulings, and may be subject to alternative interpretations.
Corrections, clarification, and additions are welcome.
Please send to ncac@ncac.org. |
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