Legal

Shall we Try Again? COPA Ruled Unconstitutional

Thalia.

Posted to Legal on Fri Mar 23, 2007 at 08:56:55 AM EST (promoted by port1080). RSS.

Congress' fourth attempt at regulating Internet porn because we need to "think of the children" has been ruled unconstitutional.  COPA (Child Online Protection Act), a 1998 federal law that makes it a crime for commercial Web site operators to allow children access to "harmful" material was challenged almost immediately after it was passed.  An injunction was issued almost immediately, and the law has never been enforced.  The U.S. Supreme Court in 2004 upheld a temporary injunction the district court had issued early in the case that blocked the law from ever taking effect.

Now, a federal District court has ruled that the law violates the First Amendment.

The judge is quite apologetic in his opinion, pointing out that he wishes he could do more to help children.  But the crux of Reed's reasoning in striking down the law was that there are less-restrictive means available for protecting children than a criminal statute that will have a chilling effect. Parents, Reed said, can protect their children through software filters and other means that do not limit the rights of others to free speech.  Since this is content based restriction on speech, there is a high level of scrutiny, which this law could not meet.  Naturally, the ACLU, who was the plaintiff in this case is happy with their victory.

This, at least temporarily, ends 8 years of litigation.  The Justice Department is expected to appeal.  Congress is expected to try again.

Tags: edited by Port1080, written by Thalia, Congress, COPA, Law, Internet (all tags)

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2

Re: Shall we Try Again?

port1080.

Fri Mar 23, 2007 at 09:14:16 AM EST

5.00 (interesting)

The biggest problem with this is that it will be essentially useless unless Congress also mandates that all US ISPs block access to foreign porn sites as well. The gambling analogy doesn't really work, because the gambling sites that the government was able to shut down were still directly targeted at US audiences and their owners were American. By contrast, there are hundreds of thousands of porn sites out there (indeed, probably millions) that are not hosted in the US or intended for US audiences, with owners that will never come to the US or have dealings with American companies. If the intent is to "protect the children" from accidentally stumbling across these sites, this simply won't work.

If the government really insists on a server-level solution, what they might do is require all ISPs to have a "child friendly" account with server-side censoring. This would eliminate the difficulty some less-than-technically aware parents have in setting up filtering software (and make it much more difficult for children to circumvent), while still protecting the rights of the rest of us.

Ce n'est pas une pipe. C'est une signature.

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Re: Shall we Try Again?

thefadd.

Fri Mar 23, 2007 at 06:37:55 PM EST

none

Do you think that ISP's could head off such a regulation by offering specifically "child-friendly" accounts now? AOL has filtering software. Of course it won't be enough for lawmakers who want to make political splashes but shouldn't it effectively be the same? Doesn't everyone who hates pr0n use AOL anyway?

escalators never fail; they just become stairs

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Re: Shall we Try Again?

port1080.

Fri Mar 23, 2007 at 06:41:33 PM EST

none

Do you think that ISP's could head off such a regulation by offering specifically "child-friendly" accounts now? AOL has filtering software.

I think they could...the thing is, most ISPs currently only offer filtering software, as opposed to server-side filtering. Filtering software is cheaper for them, but easier to circumvent (and easier for parents to just plain screw up). That's why I think that ISPs with server-side filtering would be a nice middle ground, but whether ISPs themselves will ever volunteer to do it, I don't know.

Ce n'est pas une pipe. C'est une signature.

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Free love

Steve Urkel.

Sat Mar 24, 2007 at 12:31:22 AM EST

none

Porn can't be stopped, but the financial rewards of making it should be eliminated by removing all copyright and intellectual property rights to it.

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Re: Free love

thefadd.

Sun Mar 25, 2007 at 10:12:59 AM EST

5.00 (astute)

Removing copyright and intellectual property rights to pornographic material wouldn't eliminate the financial rewards. Being the first major business online and by its nature an extremely copyable medium, porn is probably the most infringed upon material out there in the first place. But it also has an extremely short shelf life.

Most of its money is made when it's new and it has very low production costs, especially with modern video and internet technology. Additionally, the internet has allowed producers/stars to get very close to their fan base and the porn industry has embraced this to a much larger degree than say Hollywood, although to be fair to Hollywood this is only because porn fame doesn't extend beyond the fan base. What it does do, though, is engender a great deal of fan loyalty. Loyal fans buy your video right when it comes and specifically decide to do so from you so that you are supported to stay in the business and make more stuff they'll want to buy. Those fans understand that if you don't get money, you won't be around to make more stuff they want to see. Porn has conventions where you can meet your favorite star. When was the last time the RIAA did that?

Low production costs and high loyalty mean your business faces little threat from copiers. They can get ahold of stuff and reproduce but it's already stale. You don't need it anymore and you've already made all you need from it. All an established producer/star has to do is make a video and it will likely be financial rewarding to them before pirates even get ahold of it. There is no theatrical release that pirates can use to copy and beat the original producers "to the street" with a video.

I think what this shows at the end of the day is that regular law abiding citizens who don't harm other citizens and have happy lives with their children, husbands and wives demand what has been categorized as "pornographic" material and government can do little to turn back the flow of that market unless it wants to abrogate the rights of its people.

escalators never fail; they just become stairs

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Re: Free love

Steve Urkel.

Sun Mar 25, 2007 at 05:53:14 PM EST

none

Interesting points. While some money would still be made that way, public domain porn would put a sizable dent in profits, in the hotel pay-per-view market in particular.

"Porn has conventions where you can meet your favorite star"

I always imagine the conversations with the fans being like the "Remember when you were in that move...that was awesome" Chris Farley sketches.

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Re: Free love

thefadd.

Wed Mar 28, 2007 at 03:25:58 PM EST

none

I always imagine the conversations with the fans being like the "Remember when you were in that move...that was awesome" Chris Farley sketches.

The stars don't actually talk to you.

While some money would still be made that way, public domain porn would put a sizable dent in profits, in the hotel pay-per-view market in particular.

How? No, I mean seriously. How? So long as your a captive audience in the hotel, it doesn't matter where the content comes from. The hotel is still gonna charge you out the ass. There's free water in the spicket and a one liter bottle down the street for 79 cents but a 16 ounce bottle still costs $5 in the hotel room.

escalators never fail; they just become stairs

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Re: Free love

Steve Urkel.

Wed Mar 28, 2007 at 03:32:50 PM EST

none

" I mean seriously. How?"

The hotel will make money running recycled PD porn, but pornographers won't.

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Re: Free love

thefadd.

Fri Mar 30, 2007 at 07:19:33 PM EST

none

The hotel will make money running recycled PD porn, but pornographers won't.

That model would hardly be economically sustainable because of the short shelf life of pornographic material. You have to have new stuff for it to sell.

escalators never fail; they just become stairs

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Re: Free love

3fingerspointback.

Thu Mar 29, 2007 at 03:20:18 AM EST

none

In addition to what thefadd said, many porn performers make porn not for the immediate pay, but to enhance their value when they hit the strip club circuit.

(is 3fingerspointback)

1

COPA

nmiguy.

Fri Mar 23, 2007 at 08:58:05 AM EST

none

Now I have that song in my head.  "At the copa, copa cabana, music and passion were always the fashion at the copa..."  Run this.  

3

Rust-Tierney never sleeps

Steve Urkel.

Fri Mar 23, 2007 at 01:59:15 PM EST

none

I'm not suprised the ACLU has no problem with children seeing pornography, since the ACLU has no problem with children in pornography.

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Once again, the champion

Lou.

Fri Mar 23, 2007 at 02:39:15 PM EST

none

Gordon, you never fail to amaze me with your feats of prowess in the Standing Logic Broadjump.  Of course, a nasty connesewer of child porn who happens to be a former president of a state branch of the ACLU is the secret controller of ALL ACLU activity in the United States.  How could we have been so blind?

It's the end of the world as we know it, and I feel fine

5

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Re: Once again, the champion

Steve Urkel.

Fri Mar 23, 2007 at 03:39:23 PM EST

none

Was I making that generalization? It's funny, an awful lot of leftoids are able to make generalizations about Fundementalist Christians as a whole from the behaviour of Ted Haggard, or about white people as a whole from the behavior of the ex-convicts who drug Fred Byrd.

I will say, to his credit, at least Rust-Tierney was looking at pictures of girls.

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Head spinning now

Lou.

Fri Mar 23, 2007 at 03:47:13 PM EST

none

an awful lot of leftoids are able to make generalizations about Fundementalist Christians as a whole from the behaviour of Ted Haggard

Wait a minute...are you making generalizations about  the generalizations that other people make about other people?

It's the end of the world as we know it, and I feel fine

8

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Re: Rust-Tierney never sleeps

thefadd.

Fri Mar 23, 2007 at 06:40:36 PM EST

none

Considering those images were probably placed on his computer by a right-wing hit squad looking to take down a prominent ACLU leader just like Rove had the federal attorneys removed, no, I'm not surprised either.

escalators never fail; they just become stairs

10

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Re: Rust-Tierney always sleepeer agent

Steve Urkel.

Sat Mar 24, 2007 at 12:20:56 AM EST

none

When he was volunteering in the Peace Corps, Rust-Tierney was kidnapped and subjected to a regime of Monarch brainwashing, giving him an alternate personality which could be activated by certain trigger words. He was then sent to infiltrate the ACLU and liberal causes as an unwitting sleeper agent. His alternate personality was programmed to like violent child personality and ensare other liberals into partaking of it. Now you know the rest of the story.

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Re: Rust-Tierney always sleepeer agent

MayorBob.

Sat Mar 24, 2007 at 06:34:52 AM EST

none

But, how do the homosexualists figure into all of this?

Illegitimi non carborundum.

13

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Re: Rust-Tierney always sleepeer agent

Steve Urkel.

Sat Mar 24, 2007 at 01:37:18 PM EST

none

They are the unindicted co-conspirators.

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