In a little noticed action in late January, the Supreme Court put an end to the government's quixotic and wasteful ten-year effort to impose censorship on the Internet via a piece of misguided legislation dubbed, "The Children's Online Protection Act," or "COPA." The law placed severe restrictions on a wide range of legal, socially valuable speech, including content relating to sexual identity, health and art. Such content was covered by the law's definition of "harmful to minors" and criminalized any site that allowed minors access to that type of material.
But the law was never enforced because it was immediately challenged in the courts as a violation of the First Amendment. Yet the government stubbornly pressed on in a tortured and expensive procedural odyssey that took the case up to the Supreme Court and down to the trial court, over and over again.
Meanwhile the world changed. Web 2.0 was born. The blogosphere exploded. YouTube made us all content creators, and rather than surfing the web to view static content, social networking changed the way young people interact and share content online.
And over the years, multiple blue ribbon commissions considered the question of how to keep minors away from inappropriate content. Each of those commissions concluded that education and the voluntary use of parental empowerment tools, which help parents guide a minor's online experiences, were the only workable and constitutional solutions. And so when the Supreme Court refused to hear the government's appeal COPA's tortured journey ended with a whimper. And no child was "protected" in the making of this debacle.
So what happens next? Will Congress once again beat against the tide and enact yet another Internet censorship law? After all, COPA was Congress's answer to the Supreme Courts 9-0 decision striking down the Communications Decency Act. Will the Obama administration slam the coffin on Internet censorship laws once and for all? It would seem so. The Obama Platform says that the new Administration "values our First Amendment freedom" and "does not view regulation as the answer to these concerns." However, it's not clear the Congress will fall in line.
Before Congress adjourned last fall, it quietly approved a bill that will require the Federal Communications Commission to study the technologies available for blocking access to content across platforms, a move some fear is a precursor to a mandate for a V-Chip for the Internet. Another bill has charged the NTIA with a similar study. And the Senate Commerce Committee's new Chairman, Senator Jay Rockefeller, has made it clear that he wants to regulate violent content on television in the same discredited way that Kevin Martin led the FCC to over regulate so-called "indecency." This series of events, lined up end-to-end, should give free speech advocates a reason to stay vigilant; it looks like we may continue tilting at windmills for another four years.