Protecting Children and Free Speech Online

The Child Online Protection Act was passed in 1998 in an effort to prevent minors from accessing "material harmful to minors," specifically depictions of sexual activity or nudity, on the Internet. Unfortunately, the Act did in a manner that substantially impaired free speech rights, and its implementation has been barred as likely unconstitutional on several occasions, including by the Supreme Court in a case argued by the ACLU.

This week, the Supreme Court refused to hear a new appeal of an appellate court ruling holding the Act unconstitutional, prompting celebrations that the Act "appears to be permanently, completely, and otherwise absolutely dead."

Why the celebration? While the law's intent - to keep children away from harmful content - may have been admirable, its mechanism was inherently flawed. By placing the onus on website operators to determine whether their material "violates contemporary community standards" - and subjecting them to fines of up to $50,000 and up to six months in prison if their answer is wrong and a minor accessed the material - the law discouraged website operators from posting material that carried the slightest risk of prosecution, even if they likely would not have been convicted or even prosecuted.

The First Amendment to the Constitution prohibits precisely this kind of restraint on freedom of expression, and the courts have consistently recognized that even an admirable goal like protecting children does not permit the government to "incidentally" suppress legitimate speech.

Let's hope that COPA, and other efforts to suppress speech in the name of "protecting chidren," will stay dead - at least for a while.

For more information, visit the ACLU's COPA site at aclu.org/copa.

Chris Conley is the Technology and Civil Liberties Fellow with the ACLU of Northern California.