The decision is an interesting one.
Court said they affirmed the District Courts original views on the unconstitutionality of the Act – the burden on speech protected for adults under first amendment, not the Appeal courts addition arguments that a number of terms (such as ‘material that is harmful to minors’, which includes the concept of taking ‘as a whole’ material designed to appeal to the ‘prurient interest’ of minors and material (when judged as a whole) lacks ‘serious literary’ or other ‘value’ for minors; and the definition of ‘commercial purposes’, which limits the reach of the statute to persons ‘engaged in business’ )
In doing so whilst laying aside the issue of whether the ‘community standards’ language rendered the statute unconstitutionally broad (which it dealt with in the original appeal) it concentrates instead on whether or not the COPA is the most effective way of achieving Congress’ goals or whether there are plausible, less restrictive alternatives to COPA. The Court states, in its majority opinion, that at no point in this case has the government shown that it would be likely to disprove the plaintiffs’ contention that less restrictive means of achieving their goals exist.
The court re-asserts the view that the decision to allow the preliminary injunction on the Act to stand means the government must “shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so” (the constitution demands that content—based restrictions on speech are presumed invalid, unless the Government can show their constitutionality).
Somewhat amusingly, considering the decision in CIPA, the use of blocking / filtering software is the primary alternative put forward as less restrictive. “ Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source”
The majority opinion is careful to quote the District Court’s original ruling stating: ““[t]he record before the Court reveals that blocking or filtering technology may be at least as successful as COPA would be in restricting minors’ access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web site operators.”
The Court rightly points to the fact that if enacted and if it functioned as the US government say it would, all COPA would do is place restriction on accessing content from US providers, and material posted on the web in America. They would still be able to see ‘harmful material’ posted in any other country. The COPA would not prevent minors from having access to those foreign harmful materials. Indeed, the government’s own commission on COPA, set up to examine the various merits of different means of restricting children’s access to ‘harmful materials’, recommended filters as more appropriate than verification screens. Additionally it was mentioned that providers of the materials that would be covered by the statute could simply move their operations overseas, to by-pass the act
This alone, they agree, makes it possible that filtering software might be more effective in serving Congress’ goals. (especially as filters will work on email and web content from any country) “COPA presumes that parents lack the ability, not the will, to monitor what their children see” the court goes on. Justice Stevens – who believed the law was unconstitutional just on the original ‘community standards’ issue – perhaps put it best when he said in his concurring opinion “I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children’s viewing habits”. It is amazing just how often adult rights are removed, or attempts make to remove them, or to introduce spurious laws (see Induce Act) under the pretext of it’s to protect ‘the children’ – therefore marking you as someone who is NOT for protecting ‘the children’, if you dare to speak up against it.
The Court does recognise filters are not a perfect solution, but even if it is a flawed solution, that does not mean it is necessary a less effective one they argue. Justice Breyer (and the Chief Justice and Justice O’Connor) in their dissenting opinion say to class blocking / filtering software as a ‘less restrictive alternative’ is a ‘misnomer’, as the technology was part of the status quo when the legislation was framed, and that the overblocking and underblocking defects of such software, highlighted by Justice Stevens in his dissenting opinion in CIPA. Breyer’s dissenting opinion is, for the most part, well argued, although for me he misses the point on filtering v COPA. By the Government advocating filtering, and educating people on its uses (and problems) it puts the power in the hands of the people (‘we, the people of the …’) and lets the individual, parent, or guardian decide. COPA is the government deciding what speech is free and deciding what you can or cannot see.
Breyer does make some additional interesting points. In particular he states: “If this statute does not pass the Court’s “less restrictive alternative” test, what does? If nothing does, then the Court should say so clearly,” I agree. The decision of the court to send the case back to the District court once again serves no purpose. The Court says that the parties may “introduce further evidence” as to the “relative restrictiveness and effectiveness of alternatives to the statute.” but I agree with Breyer when he says, “I do not understand what that new evidence might consist of”. There may be an update on how blocking / filtering software has moved on since the case started, but little else. And barring them finding a rabbit in a hat somewhere, very little chance of the government succeeding. So why didn’t the court just pull the plug, right here, and now?
That said, the government does not seem to have a legislative leg to stand on here. Do they really push ahead and argue that filters are not less restrictive than COPA. In the light of their arguments in CIPA, this would seem incredible.