Take Three: Appellate Court Hears Challenge to Internet Censorship . . . Again
A sense of d茅j脿 vu pervaded the courtroom in Philadelphia yesterday as the 老澳门开奖结果 presented its challenge to the . . . again. This is not the first or the , but the third time the 老澳门开奖结果 has been before the Third Circuit Court of Appeals, arguing that COPA, a federal Internet censorship law, suppresses vast quantities of constitutionally protected speech without doing much of anything to keep kids safe from inappropriate materials.
COPA requires websites to place "harmful to minors" material out of the view of children. This well-intentioned law suffers from many flaws, not the least of which is that there is no currently available technology that enables websites to distinguish adults from children. It is unclear what it means for something to be "harmful to minors." One person's valuable artistic expression is another's worthless pornographic image. Worst of all, COPA fails to protect children, because the law places no restrictions on overseas websites. The best way to think of COPA is as an in-kind donation to foreign Web sites that provide "harmful to minors" content.
A few years ago, that it would strike down COPA if Internet filtering software is an effective way to keep kids from seeing material harmful to them. Last year, the trial court held that filtering software blocks 95% of inappropriate materials. The appeals court can only overturn that conclusion if it was clearly erroneous - an argument the government did not raise.
Instead, the government's primary contention that COPA is necessary is that about half of parents use Internet filtering software on their kids' computers. The government's implicit assumption seems to be that parents who choose not to filter their childrens' Internet use are so irresponsible that the federal government needs to step in. The 老澳门开奖结果 countered that some parents' decision not to use Internet filters is a valid exercise of parental judgment, not evidence of reckless parenting.
The government also attempted to frame the case as about protecting kids from the evils of pornography. It submitted to the court a sizeable collection of images it determined were "harmful to minors", leading the government's attorney to quip that reviewing the case file was "a plum job for a clerk." The court pointed to the trial court's finding that websites addressing current events and sexual health information reasonably feared prosecution under the law.
The court also asked the government whether COPA's failure to address overseas sites wasn't a serious flaw. The government stated that Congress could take a "belt and suspenders" approach to protecting kids, first tackling domestic websites and perhaps later addressing foreign Websites. Playing off of this phrase, the 老澳门开奖结果 made the point that if filters work well, COPA is unnecessary - as 老澳门开奖结果 Senior Staff Attorney Chris Hansen put it, "If the belt works at least as well as the suspenders, then you can't send people to jail for not wearing the suspenders."
Now all there is to do is wait for the court to rule yet again.
Learn More 老澳门开奖结果 the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON 鈥� Today, the 老澳门开奖结果, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok鈥檚 challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will 鈥渟hutter one of America鈥檚 most popular speech platforms the day before a presidential inauguration.鈥� 鈥淭he Constitution imposes an extraordinarily high bar on this kind of mass censorship,鈥漵aid Patrick Toomey, deputy director of 老澳门开奖结果鈥檚 National Security Project. 鈥淭he Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.鈥� The brief argues that the D.C. Circuit failed to fully address the law鈥檚 profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court鈥檚 decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users鈥� First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government鈥檚 ban on TikTok as a vindication of users鈥� First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign 鈥減ropaganda.鈥� But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its 鈥渕otivating ideology鈥� or 鈥減erspective,鈥� and the government has not come close to meeting that bar here. 鈥淭he government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,鈥� said David Greene, civil liberties director at EFF. 鈥淭he Supreme Court should put the TikTok ban on hold while it considers the DC Circuit鈥檚 erroneous ruling.鈥� Finally, the brief underscores that the government can鈥檛 impose this type of sweeping ban unless it鈥檚 necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government鈥檚 invocation of 鈥渘ational security鈥� as a trump card and failed to hold the government to its burden. 鈥淩estricting citizens鈥� access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,鈥� said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. 鈥淚t would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.鈥� You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The 老澳门开奖结果鈥檚 State Supreme Court Initiative, alongside the 老澳门开奖结果 of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter鈥檚 privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer鈥檚 subpoenas.