Child Online Protection Act and Free Speech

Last month the US Supreme Court refused to hear Mukasey v. ACLU, effectively ending the Child Online Protection Act (COPA). Had it ever been enforced, COPA would have required commercial distributors of material harmful to minors to prevent access to their web sites by said minors. “Material harmful to minors” was defined so loosely by the law that materials which would not even qualify as obscene under current obscenity law would had to have been screened from minors lest their impressionable little minds be warped by seeing Venus at the Mirror or The Three Graces. “Well, at least we don’t have to worry about this sort of encroachment on the first amendment now that a Democrat is in the White House” you might say. In the words of an unfortunately still alive and certainly not that great sports commentator, “Not so fast, my friend”.

First, COPA was signed into law in 1998 by Bill Clinton, so party affiliation is not necessarily a good predictor of free speech support. And second, there is a strong argument to be made that the most serious threats to free speech currently come from the left, not the right. The Fairness Doctrine would never be brought back by a Republican White House, but might (depending on who you ask) by a Democratic one. The college campus is not known as a hotbed of conservatism these days, but speech codes which restrict what students and faculty can say and where they can say it are commonplace at both private and public universities. And blasphemy laws are making a comeback in places such as the UK , Canada , and the UN. Sure, they call it a ban on the “defamation of religion” or Combating Defamation of Religions Resolution (UN), but these laws are essentially a return to the old time blasphemy laws. Don’t think so? Just as Dutch MP Geert Wilders who was recently barred from entrance into the UK based on a movie he helped produce or ask writer Mark Steyn who had to defend himself in front of the Canadian Human Rights Commission against charges of blasphemy human rights violations for excerpts from his book that were published in Maclean’s magazine.

And if the individual attacks on free speech from the left and the right weren’t bad enough, when the two sides team up they can be downright distressing. The McCain–Feingold Act was a bipartisan effort which severely restricts the central purpose of the first amendment, political speech. And who can forget those blasts from the past, the Parents Music Resource Group (which brought us those explicit language warning stickers on albums and was headed by known right-wing nut Tipper Gore) and the Meese Commission (making it more difficult to buy Playboy at gas stations and convenience stores since 1986).

Now, you may argue that some of these examples I have given are justifiable restrictions on free speech for a variety of reasons (you won’t convince me, but you can try). The point is, they are restrictions on free speech. And they aren’t coming from storm troopers in black uniforms, but from smiling faces on both the left and the right claiming these restrictions are for your own good. Or even worse, they are “for the children”.

By David Novak, JD