This week, the 3rd U.S. Circuit Court of Appeals upheld a 2007 lower-court decision that the Child Online Protection Act (COPA) violated the First Amendment. The Court found that the law was not the most effective way to keep children from visiting adult websites, while still protecting the First Amendment rights of adults. This is the latest in a string of defeats for the federal government in a ten year fight over censorship on the web.
The lower court and the Circuit Court both found that the definitions of what must be hidden were so vague and ambiguous, that they were impossible to reasonably interpret and could be used to require that material suitable for most children actually be hidden behind age-verification security systems.
As part of its First Amendment analysis, the Court also looked at whether there were less restrictive and potentially more effective ways to filter material that is inappropriate for children. According to the Court, “Unlike COPA, filters permit adults to determine if and when they want to use them and do not subject speakers to criminal or civil penalties."
The fight over COPA in the courts has been ongoing since 1998. Generally speaking, the law criminalizes posting material that is "harmful to minors" on the web for "commercial purposes" without having age verification systems in place.
Supporters of the law say it is merely an attempt to keep pornography out of the hands of children on the web, while detractors claim that the law amounts to censorship of legitimate online content. The debate isn’t over yet, and is likely to continue in the legal arena. Most likely the government will appeal the decision by requesting a full panel hearing at the Circuit Court, or possibly will apply directly to the Supreme Court for review.
This one is far from over…so stay tuned.
Come back to the iLegal column every week as we get specific about the rules, regulations, laws and trends that affect the online advertising industry. Each week we discuss important legal issues, talk about how to avoid the pitfalls, and cover the breaking legal and regulatory advertising industry news.
Legal Disclaimer: Information conveyed in this column is provided for informational purposes only and does not constitute legal advice. These materials do not necessarily reflect the opinions of Digital Moses, and is not guaranteed to be complete, correct, or up-to-date. The column is provided for "information purposes" only and should not be relied upon as "legal advice." This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this column without seeking the advice of an attorney.
Mark Meckler is the General Counsel for UniqueLeads.com, Inc., and Unique Lists, Inc. Mark is the Outreach Coordinator of the eCommerce and Technology Committee of the Association of Corporate Counsel, and is a member of the International Association of Privacy Professionals. www.UniqueLeads.com
Copyright 2008 Mark J. Meckler
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