Big win for online free speech

A high-profile federal attempt to censor the Internet took a body-blow today when a federal court ruled that the Child Online Protection Act, the great blue-nose hope of 1998, is unconstitutional. COPA was intended to restrict children's access to "harmful" material by imposing age-verification requirements on Web sites that host such content. Penalties for violating the law included a $50,000 fine and up to six months in prison -- a hefty incentive to self-censor or relocate overseas for online publishers of even mildly risque material.

In his ruling in the case of American Civil Liberties Union v. Gonzales (PDF file), Judge Lowell A. Reed, Jr. of the U.S. District Court, Eastern District of Pennsylvania, found that COPA violates both the First and Fifth Amendments to the Constitution because:

(1) COPA is not narrowly tailored to the compelling interest of Congress;
(2) defendant has failed to meet his burden of showing that
COPA is the least restrictive and most effective alternative in achieving the compelling interest; and
(3) COPA is impermissibly vague and overbroad.

He issued a permanent injunction against the law's enforcement.

Not surprisingly, Judge Reed found that COPA is overinclusive -- that is, it censors too much -- because it "prohibits much more speech than is necessary to further Congress' compelling interest."

For example, as discussed above in Conclusions of Law 3 and 4, the definitions of "commercial purposes" and "engaged in the business" apply to an inordinate amount of Internet speech and certainly cover more than just commercial pornographers, contrary to the claim of defendant.

Interestingly, Judge Reed also found that COPA is underinclusive because "there is a significant amount of sexually explicit material on the Internet which originates from outside of the United States" that is not subject to the law -- indeed, is beyond the reach of U.S. law.

On both points, the judge said that Internet content filters chosen by parents would be "at least as effective" in fulfilling the purpose of the law.

The court's ruling is a welcome one for advocates of free speech -- especially those of us who enjoy the DIY publishing power of the Internet. Laws like COPA threatened to impose burdens on everybody, but they posed special hazards for small-scale operators who may have the power to post to the Web, but who lack the savvy or resources to set up age-verification systems, or to transfer their operations to overseas servers.

At least for the moment, free speech prevails.