Patricia Nell Warren

Breaking News: COPA Not Copacetic

Filed By Patricia Nell Warren | July 22, 2008 2:00 PM | comments

Filed in: Entertainment, Fundie Watch, Living, Marriage Equality, Media, Politics, Politics
Tags: ACLU, Child Online Protection Act, harmful to minors, Internet censorship, U.S. Supreme Court

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.

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Isn't it COPPA - Children's Online Privacy and Protection Act?

I think most Americans are less apt to worry about free speech because of the First Amendment, because it has been, on balance, fairly successful in upholding our rights. But you don't have to go to China to find the kind of restrictions on speech that would make a great many Americans bristle ... just look north of the border. Thanks in large part to "Women Against Pornography" feminists like Catherine MacKinnon and Andrea Dworkin, gay and lesbian books and magazines (including some of Dworkin's own palaver, a supreme irony) have been confiscated by Canadian authorities under anti-porn laws these Feminazis advocated for. It's easy to take potshots at Clinton and conservatives, but the reality is that there are many enemies of free speech in our own communities and those we might think are allies, though they are nothing of the sort. I'd have more respect for your stance if you dared to acknowledge this.

To Ang -- the Children's Online Privacy Protection Act (COPPA) is a different piece of legislation, and is often confused with COPA. Possibly that confusion was deliberate on the part of legislators. Anyway, COPA aimed to regular online sales of "harmful" material, whereas COPPA aims to protect the online personal information of minors.

Patricia, thanks for such up to the minute information about these cases. I couldn't agree with you more that the First Amendment is #1 for a reason. Everything else is kind of a moot point if you can't openly criticize the government and its policies. I'm such a dork that I actually have a favorite Supreme Court Justice of all time - Oliver Wendall Holmes. He was a firm believer in the "marketplace of ideas" and was really loathe to impose any kind of restrictions on free speech, unless, of course, the speech posed an imminent danger to society (the "fire in a theater" standard). We're so far beyond that right now (no thanks to the PATRIOT ACT), and I think the standard has been bastardized to an extreme degree.

Michael, I think it's really unfortunate that you feel like you have to use a term like "feminazi" to characterize feminists. Dworkin and MacKinnon are not representative of all feminists. And they certainly don't represent all of the different arguments that could be raised against pornography. Yes, the Canadian government may use some of their arguments to support restrictive policies. But you shouldn't resort to name calling in order to prove your point. And quite frankly, the LGBTQ community would still be stuck in the closet if it weren't for feminism. So perhaps you should show us a little respect.

Robert Ganshorn Robert Ganshorn | July 22, 2008 11:05 PM

Very true Serena, mine is Thurgood Marshall. Is it not amazing that our country throws away the best things about being an American, when they are the first things that identify us as Americans? I doubt many in China envy us for our internet protections. Particularly not those in Tibet.

To Michael M. -- I agree that there are efforts at censorship going on right in the liberal and LGBT community, and in fact I have criticized them in other commentaries at other times. There is a regrettable tendency among the PC crowd to be dogmatic about being "right," and to try and censor anybody who doesn't agree with them.

However, I do agree with Serena about dangers of the term "feminazi." Feminists have played a key role in free-speech battles in the U.S. Indeed, women's subjects -- reproductive health, choice, birth control, etc. -- are on the list I mentioned, of subjects that the religious right would like to keep away from minors.

Which brings me back to the subject of this post, namely COPA. When writing about federal legislation to censor the Web, it's entirely appropriate to take potshots at a Democratic President who not only signed the CDA bill but the COPA bill as well -- thus helping the religious right.

Hell, COPA could apply to us! Thanks for helping to fight the good fight, Patricia. I appreciate it.

Seriously, there's too much out there that some people will find objectionable to regulate it this closely.

And what if they applied the standard that it has to follow the local standards of decency to be ok? Buying one of your books might be ok in SF but not in Boise, making it even harder to know how to design websites and sell books.