The Child Online Protection Act is still slowly wending its way through the
courts. In February, a Pennsylvania judge ruled in favor of a preliminary injunction halting the
COPA -- better known as the CDA II or online censorship bill -- and that
decision is currently being appealed by the Department of Justice. There is
still a chance that this law could go into effect, restricting speech
online.
But is the law constitutional? Not if you ask the students taking the
Constitution in Cyberspace class at Yale Law School with professor James
Boyle. Their class project -- to write a mock Supreme
Court opinion on the constitutionality of the COPA -- was posted online
last week. The resounding decision: The COPA should be struck down.
The students, who adopted the names of Supreme Court justices, say that the COPA "is so ineffective as to sacrifice protected speech without directly furthering the end sought" and is "unconstitutionally over-broad."
As the student representing David Souter wrote in the majority opinion, "The sheer amount of material, both indecent and non, on the Internet is mind-boggling. Even if the COPA was perfectly enforced against 100 percent of the residents of the United States (a ludicrous idea), there would still be enough foreign material
'harmful to minors' to allow an American youth to spend his or her entire
teenage years doing nothing other than browsing it. Who can doubt the
unconstitutionality of a statute which restricts the protected speech of
American adults in order to fail dramatically at reducing the access of
minors to harmful material?"
Boyle's classes have tackled this kind of project in the past; two
years ago, his Law in the Information Society class at American University
issued a similar opinion on the Communications Decency Act.
Surprise -- the class struck down the CDA as being unconstitutional, just
like the COPA, saying that it wasn't the "least restrictive means" to
protect children from online smut.
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