Thursday, March 22, 2007

ACLU v. Gonzales

Two notes about the opinion:

1. The court relies in part on the unlikelihood of many prosecutions actually occurring under the law, because it's just not that important compared to other Justice Department priorities, to determine that COPA will not be more effective than less restrictive alternatives (finding of fact 30). I don't recall seeing an enforcement-frequency test for effectiveness before; I'm not sure how the court should weigh it if Justice crossed its heart and swore to enforce the law; and the reasoning seems inconsistent with the basic chilling effect argument that gets the law struck down.

2. Another novelty, this one presaged by earlier opinions in the case: COPA covers all minors under 17, which means that material could be banned if it's obscene and lacks value for 5-year-olds. The court acknowledges that the Supreme Court upheld similarly worded restrictions on face to face transactions. But the court discounts those cases because, at the Kwik-E-Mart, the chilling effect is lessened by the fact that it's easy to screen out the youngest kids for whom the most is obscene. But on the internet nobody knows you're a 5-year-old, so the chilling effect of restrictions on internet speech is much greater.

This reasoning seems much more solid than point 1, and yet I wonder about "the internet is different" rationales -- even when they favor First Amendment claims. Does this mean that it's okay to prosecute comic book store employees for handing out free comic books to kids, because they should have known better? Not all free speech takes place on the internet -- and internet access is far from universal.

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