It has taken ten years, but the long and bloody battle over COPA (the Child Online Protection Act) has finally taken one more gory step towards a possible victory for free speech. As one of the plaintiffs, I hope the case will get a final decision in my lifetime.
This morning the Third Circuit upheld a district judge's ruling that the Justice Department may not enforce COPA because it is too restrictive, hence unconstitutional. However, the Justice Department will probably appeal again to the U.S. Supreme Court, and drag on for another year or two, squandering more millions of taxpayer dollars in hopes that time will be on their side. Up till now, the U.S. Supreme Court has slapped them down on many speech issues, but as the justices continue inching towards the right, the Court may finally give the DOJ what they want on Internet censorship.
The lawsuit was filed in 1998 by the American Civil Liberties Union, representing itself and a number of members and website plaintiffs, from Condomania to online booksellers like myself. The law would make it a federal crime for commercial web sites to sell "harmful" material to minors. And the religious right has a long, long list of what they consider "harmful" to kids.
So I'm awfully glad that the law hasn't been enforced so far. Otherwise I might be fined up to $50,000 and imprisoned for up to six months because a 17-year-old bought a copy of The Front Runner on the Wildcat Press website.
As an author, I view censorship as a personal kick in the teeth by government, so I've been involved in anti-censorship litigation since 1996, when I signed on with the ACLU for the first big historic Internet case -- the one over the Communications Decency Act (CDA). (Yes, I've been a card-carrying member of the ACLU for over 20 years.) President Clinton's signing the CDA showed just how far a Democratic president would bend over for conservative votes. The CDA had a fast track that led to a Supreme Court final decision in a single year. No such luck on this one.
If COPA is eventually struck down, conservatives in Congress will bounce back with yet another, similar bill. They will keep throwing dough against the wall in hopes that something will finally stick.
Most Americans don't seem to notice that free speech is in the First Amendment, not the amendments down the line. They aren't actively interested about taking action to protect free speech. Compared to agonizing daily needs like healthcare and personal bill-paying, it seems like a distant academic issue to many. I imagine, though, that people would start screaming bloody murder if they had to live with the kind of censorship imposed in China, complete with its media crackdowns and waves of arrests. So I hope this thought sinks in with American tourists arriving in Beijing to "enjoy" what has already been labeled the "no fun Olympics."
Even many GLBT people don't worry about it as much as they worry about marriage and identity issues -- though they would lose the right to discuss these cherished issues publicly if the U.S. ever goes due south on free speech.
In a related decision this morning, the Third Circuit court of appeals also threw out the FCC's $550,000 fine against CBS television stations for airing a brief glimpse of Janet Jackson's breast during the 2004 Super Bowl half-time show. The court said that the government had "arbitrarily and capriciously departed from its prior policy" of excusing "fleeting" broadcast footage from indecency prosecution.
Hurray for the Third Circuit. But it's shocking to see how many Americans supported the FCC fine in polls. When they complacently watch days and months of grisly TV news footage showing the world going down the toilet -- then scream bloody murder about a "wardrobe malfunction" lasting a fraction of a second -- it's yet another sign that the United States is losing its grip on reality.