COPA made it a crime to put material that is “harmful to minors" on the Web. The flaws with this idea are legion, but most dangerous is this: It's impossible to tell in advance what material prosecutors will consider "harmful to minors,” placing many individuals, from artists, to journalists, to doctors, who choose to express themselves or provide useful information on the Web, in danger of criminal prosecution. Would federal laws find Salon.com's publication of the Abu Ghraib prisoner photos "harmful"? Would sex-educator Heather Corinna be prosecuted for providing safe-sex advice to teens on her Web site? Would Nerve.com be subject to exorbitant fines for publishing its erotic photography online?
In addition, because the law only applies to domestic Web sites, COPA would be utterly ineffective in protecting children from the vast quantity of adult sexually explicit material that originates overseas.
In its opinion, the court described as "utterly meritless" the government's argument that COPA only reached commercial speech, specifically the speech of commercial pornographers. To the contrary, the court wrote: "COPA suppresses a large amount of speech that adults have a constitutional right to receive."
The court held that Internet filtering technology is an effective and less speech-restrictive alternative to protect children online. It noted that "[e]ven defendant's own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web."
One of the striking but little-noted aspects of this case is that although the government has asked for vast new power to prosecute individuals displaying material it decides is "harmful to minors," it has failed to use the tools is already has to keep kids safe online. The display of obscenity online is already illegal under federal law. The federal government could prosecute individuals for obscenity—but it hardly ever does. The court found that the federal government has initiated fewer than 20 prosecutions for obscenity unrelated to child pornography or sexual abuse of children. The court reasoned that "based on the recent sparse enforcement history of the obscenity laws . . . it is unlikely that COPA will be widely enforced, thus further limiting its effectiveness."
The federal government has already expended millions of dollars to defend this deeply flawed law. For the sixth time, a court has held that COPA seriously infringes free speech. The ball is in the government's court to decide whether to appeal yet again. I hope they do not, but if they do, we're ready to head to court once again to protect our right to free speech.