The US Supreme Court demonstrated this week that sometimes the proper governmental action is to do nothing. The court declined to hear an appeal of the Child Online Protection Act (COPA) of 1998, finally driving a stake through the heart of that attempt at internet censorship.
Libertarians were pleased when the Supremes threw out the Clinton era Communications Decency Act in 1997. We frowned the following year when Congress passed the Child Online Protection Act (COPA). The law was aimed at bowdlerizing the internet in the name of The Children.
The law was immediately challenged in 1998 and never enforced. It barely survived two trips to the US Supreme Court, but last July the third circuit court of appeals upheld a lower court’s ruling that the law was unconstitutional. In an effort to curb the availability of pornography, the law would have charged commercial website operators who posted “material that is harmful to minors” and punished them with 6 months imprisonment and a fine of up to $50,000.
The ACLU brought suit in Philadelphia on the grounds that the law would “criminalize constitutionally protected speech on the Internet” and deprive adults of the right to choose what content they wanted to see. At one point in the ten year court journey, a district judge ruled that an end-user’s internet filter was a less restrictive way of accomplishing the stated goal of the law, and therefore COPA was unconstitutional. In July 2008, the U.S. Court of Appeals for the Third Circuit upheld that decision, but the Bush administration insisted on a third appeal to the US Supreme Court. This week the Supremes declined to hear the case, which upheld the lower court’s ruling.
The Congress can learn two lessons from this week’s ruling. First, our Rulers should learn that censorship is unconstitutional, so save us all the effort and agony and just stop passing these silly attempts to ban sex — or at least pictures of it. Second, as the congress drools over the prospect of yet another bailout plan, our representatives can observe the action of the US Supreme Court — and do NOTHING.
