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The end of the COPA saga

By Jack M. Balkin

The Supreme Court has denied cert in ACLU v. Mukasey, the 3d circuit case that struck down (on several occasions) the Child Online Protection Act, or COPA, which Congress passed in 1998 after parts of the Communications Decency Act (CDA) were struck down in ACLU v. Reno. COPA was immediately enjoined and never took effect, but the litigation bounced up and down through the federal courts and produced not one but two Supreme Court decisions.

COPA tried to avoid the fate of the CDA by limiting itself to websites for commercial purposes. Nevertheless, the 3d circuit concluded that first party filters installed by parents were a less restrictive alternative to imposing criminal penalties on website operators if they did not actively prevent minors from viewing prohibited content.

The Third Circuit's decision is a good one. But the most important issue for me has not been the doctrinal question of whether filters are a less restrictive alternative under the first amendment but rather a question of network design. Who should bear the burden of filtering and blocking unwanted content in an digital environment and where should the filtering decisions be located? In my view it is much better to put the filtering decision with the end user, who can better tailor filtering to their needs. (In this case, the end user is the parent who decides on the conditions of the child's access).

Not all parents are alike and not all children are alike; different parents might want to block different things. Some might decide not to block access at all but supervise and educate their children about Internet use in other ways. Without criminalizing website operations, the market can produce webservers and browsers to facilitate parental choice, as well third party software solutions, many of which already exist.

Generally speaking, the Internet should place filtering decisions and responsibilities on the end user, not the publisher of the content. There are exceptions to this basic rule, but sexually explicit speech is not one of them.

Full post as published by Balkinization on January 21, 2009 (boomark / email).