The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Tuesday, June 29, 2004

A messy win in Ashcroft v ACLU

[Following up June 28 piece.]

From an initial read-through, the Supreme Court decision in the net smut case (PDF) is deeply unsatisfactory from all viewpoints - except for the fact that the wretched law continues to be injuncted.

The majority take the narrowest possible view that secures keeping COPA in the deep-freeze: the government has failed to establish that the district judge abused his discretion in granting a preliminary injunction.

And the comprehensive constitutionality analysis of the Third Circuit is shoved to one side:
The Government has failed, at this point, to rebut the plaintiffs' contention that there are plausible less restrictive alternatives to the statute.

Rather than rule on, say, the vexed issue of community standards, the opinion of the court (from Justice Kennedy) fixes on technology: in particular, on the availability of blocking and filtering software. If the government could achieve a better result of protecting minors from smut by encouraging the use of such software, COPA would be unconstitutional.

But, since technology has changed in the years since the trial in District Court (not least because the first Third Circuit ruling was vacated and remanded in an earlier Supreme Court decision!), Kennedy says what's needed is a trial for the current facts to be established.

(A preliminary injunction only issues if the judge thinks the plaintiff is likely to win at trial - so the majority must think COPA is likely unconstitutional, one way or another.)

The upshot is to deprive the decision of usefulness in the general fight against Comstockery. In particular, in relation to FCC censorship enforcing 18 USC 1464 on broadcast indecency and profanity. The sort of ringing, principled endorsement of First Amendment protection we got in the Free Speech Coalition case (on online virtual child pornography) would have been an encouragement to broadcasters to seek to have ยง1464 struck down as unconstitutional.

At SCOTUSBlog, the decision is characterised as
a broad hint today that the lawmakers may be doomed to frustration if they try again
to censor net smut:
Congress does the best it can to capture a moment in digital time as a basis for regulation, the inevitable legal challenge ensues to block the new rules, and then the predictable delays in litigation carry the dispute into an entirely new, and very different, digital moment.

One might construe the approach as trying to let Congress down gently - rather than giving them a snappish, sophomoric lecture on First Amendment principles, to allow COPA to sink into the mire under the weight of vague (and extra-legal) forces of technological change and the effluxion of time.

The Breyer dissent, apart from denying the majority view on the technology and bewailing the snub to Congress, points up another feature of the legislation:

The material subject to COPA is defined as
  1. obscenity; and

  2. a complex definition of material harmful to minors.

If COPA were limited to obscenity alone, there would be no question that it would clearly be constitutional - because obscenity is not protected by the First Amendment. It is the non-obscene material harmful to minors that opens COPA up to challenge.

But Breyer says
the addition of these words [the material harmful to minors] to a definition that would otherwise cover only obscenity expands the statute's scope only slightly.

An observer from Outer Space might enquire: if the non-obscene material expands the scope only slightly why in Sam Hill was it put in the law in the first place?

Three reasons, I surmise:
  1. legislation on online net smut had developed into a pissing contest between Congress and the Supremes - having been rebuffed comprehensively on the CDA in Reno v ACLU, legislative pride was deemed at stake;

  2. obscenity is already criminalised - yet hardly any prosecutions are brought! A new law has to have something more than just obscenity to distinguish it from a law that has almost fallen into desuetude; and

  3. as Breyer points out, COPA is a third way on net smut regulation: recognising that the mere obscenity is not enough for the Justice Department to act, COPA is seeking to regulate what under existing law could be prosecuted. And it's all for the kids, of course. On this view, free speech supporters should be grateful at being cut slack, rather than bellyaching at the restrictions.

Notable that Injustice O'Connor joins in Breyer's dissent: inspiring a feeling that, unsatisfactory as today's ruling may be, it is truly Solomonic compared with Grutter and Gratz.

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