Tain’t nothing like a hard-won win for civil liberties before you’ve even had your first morning cup.
Know what that is, my friends? That is myself, my fellow plaintiffs — and specifically, myself, Salon and Nerve; stated to have standing and a credible fear of prosecution — and our fantastic ACLU lawyers and support staff soundly kicking government ARSE.
At issue in this case is the constitutionality of the Child Online Protection Act, 47 U.S.C. §231 (”COPA”) and whether this court should issue a permanent injunction against its enforcement due to its alleged constitutional infirmities. COPA provides both criminal and civil penalties for transmitting sexually explicit materials and communications over the World Wide Web (”Web”) which are available to minors and harmful to them. 47 U.S.C. §231(a). After a trial on the merits, for the reasons that follow, notwithstanding the compelling interest of Congress in protecting children from sexually explicit material on the Web, I conclude today that COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not narrowly tailored to Congress’ compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad. As a result, I will issue a permanent injunction against the enforcement of COPA.
Not bad news to get first thing of a morning. Not bad at all.
P.S. I really appreciate some of the issues that were brought up within the pages of the decision, because it brings some things to light that need very serious examination, and which are near and dear to my heart. For instance, this text about the issue of how minors are defined could be something pretty darn awesome to reference when it comes to young adult rights, and not defining teenagers as children: As discussed by the Third Circuit, defining minors as “any person under 17 years of age,” creates a serious issue with interpretation of COPA since no one could argue that materials that have “serious literary, artistic, political, or scientific value” for a sixteen-year-old would necessarily have the same value for a three-year old.
There is also a lot of address in that decision which makes clear that we really need to stop conflating pornography and any address or examination of sexuality or the body, as well bringing to some light the inherent classism of requiring credit cards to verify age (especially since they aren’t even useable for that purpose: a credit card account doesn’t list the age of it’s holder, so requiring a credit card doesn’t discriminate by age, it discriminates by economic class), and the issue of the government usurping the roles and choices of a parent.
P.P.S. I’m really tried of people — from the left, from the right, from the center — calling this “the porn law.” Half the deal with the judgment was that the COPA was overly broad, and would criminalize all sorts of content that dealt with sexuality or the human body, so citizens reducing it to the lowest common denominator are doing the same stupid thing the government tried to do. (To boot, porn profiteers not only didn’t win this case, they weren’t even testifying for our side: if you understand what COPA proposed, and you understand the big biz of porn - or just the basic given that anyone who is not a potential buyer is not a wanted vistor — you understand why a porn profiteer wouldn’t have any problem with it at all.) Of course, by the same token, that sort of broad brush used by anyone and everyone — especially when we recognize that most of our current administration is no more intelligent than our general populace — does stand to make all the more clear how problematic something like the COPA would have been.
Unsurprisingly, I’ve also already read more than a handful of conservative outcries to this ruling because it means that all of America’s children will continue to be “exposed” to homosexuality. So, plenty of barely-informed folks may think this is all about making sure they’re able to keep getting as much porn as they like, but there was so much more riding on this that that, of far greater import. No one’s life will be grossly impacted by not getting as much porn as they’d like: the same can’t be said for not getting education, information and visibility.
The way the COPA was structured was based on what general “community standards” would find obscene, and if you think that porn would go in that pile before realistically sexually informing teenagers, before resistance TO porn (for bigger reasons than sparing the poor, wee children’s eyes) and other status-quo beloveds, before discussion and presentation of any kind of homosexuality and bisexuality, you gots to be kidding yourself. Bear in mind, too, who would have had the big money and the agency to fight a COPA ruling if it came to them. The heads at Hustler, Penthouse, Vivid, Bang Brothers and the like wouldn’t have spent a single day in jail, they’d have just written a check for the fines — if they even had to do that — and gone on with business as usual. Someone who does what I do and got whacked with it? Scarleteen would have just been off the map, period, and not having access to anything close to that kind of money, this gal’s butt would have been in jail, for at least six months, and while tens of thousands of teens each day would have been without a source to find out about their real bodies, or how to deal with a pregnancy, online pornography-at-large would have been sitting cozy and warm at home, no problem.
Anyway, it makes getting this — Plaintiff Heather Corinna is a writer, artist, sex-educator, and activist whose primary presence on the Web consists of Scarletletters.com, Scarleteen.com, and Femmerotic.com, “each of which deals with issues of sex and sexuality with an explicit focus on challenging and combating the sexual oppression of traditionally marginalized groups.” — into the public record small all the more sweet. Such a pity legal decisions like this one never end with the nice “Neener neener,” you’d really like them to.
This, from Judge Reed, came darn close, though: “Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection…”
Addendum: Oh, good LORD. Not that I expect anything different from Morality in Media, but this is just priceless.
“While this may come as a surprise to some federal court judges, many parents are overburdened and tired. Many are naive. Many don’t want to be overly strict, like their parents were. Many are ‘technologically challenged,’ like me. Many don’t speak English. Many have physical or mental health problems. Some neglect and abuse their own children.
Overburdened? Umm, since when was parenting mandatory? Oh, right! Since conservatives have done and continue to do everything they can to keep women from having a choice as to whether or not men have sex with them, from having any and every birth control method possible easily available to them (and access to materials and healthcare that tell them how to use those methods), and to keep women from having the right to terminate pregnancies. Silly me!
And, uh…okay, so we need to engage in censorship to help abusive parents protect their kids from sexual material, rather than putting efforts into protecting them from those PARENTS? We need to do everything we can to limit everyone else’s speech to help those pitiable, tired, burdened parents who can’t be sussed to BE parents? And English-speaking is now an issue? Wasn’t the conservative concern with this supposed to about keeping kids from seeing images of breasts, vulvas and homosexuals? Since when doesn’t the visual translate?
But even assuming that every parent with one or more computers in the home used filters at all times on each computer and even assuming that filters blocked all pornography and could not be circumvented by tech-savvy children, there would still be a huge problem — namely, as children get older they increasingly have access to the Internet outside the home.
As children get older and spend less and less time in the home that is because they are becoming ADULTS, you giant buffoon. But per usual, be sure and make this about pornography, and say the word pornography as much as possible to keep those parents terrified so they’ll behave the way you want them to.
…When it comes to ‘cyberspace,’ the federal courts think it is up to parents to keep children away from Internet pornography.”
Believe it or not, that was stated as a complaint. Of course, the beauty there is that conservatives want the feds to parent for them only in the way they would parent themselves if they could be bothered to do so, if they were not so “naive,” so “technically challenged” (love that one: so, we’re to believe your six-year-old can figure out how to work the net to find all the porn, but you can’t?) and so full of mental health problems. When the federal courts think it should NOT be up to parents per the ways their children are publically educated in many respects, particularly when it comes to sex, then the complaint is the the feds are butting in.
Yeah, well….neener neener.
