Once again, I think the Supreme Court got it right today. The case is Ashcroft v. ACLU. In a close 5-4 decision, the Supreme Court struck down the latest version of the Child Online Protection Act.
This is like the second or third time COPA has come before the Supreme Court, and each time it comes up, it gets struck down. COPA is intended to keep Internet pornography out of easy reach of children. Certainly, that’s admirable, but — you guessed it — there are First Amendment issues.
The make-up of the SCOTUS majority was odd: Stevens, Souter, Thomas, Ginsburg, and Kennedy. Breyer sided with Rehnquist, Scalia and O’Connor. Kennedy wrote the opinion, saying that the latest version of COPA (re-written in 1998) is still too broad and violates the First Amendment. Here’s part of the problem: the standard of obscenity set by the latest COPA is the "contemporary community standard". That standard, however, makes no sense when you are talking about the Internet — I can assure that the "contemporary community standard" of obscenity is different in Buloxi, Mississippi than it is in NYC. That effectively means that the people in Buloxi will have veto power over what the people in NYC can see on the Internet.
Kennedy also noted that COPA was written in 1998, and since then, web-filtering technology has gotten better. It may be possible — now — to prevent kids from seeing Internet porno WITHOUT violating the First Amendment rights of the rest of us horny people who actually LIKE it and WANT it. (Those weren’t Kennedy’s exact words, but that’s the gist). Anyway, an interesting, and correct (in my view), opinion (PDF).