The more time we spend with last week's federal court ruling
rejecting the Child Online Protection Act (COPA), the more nice things
we have to say about it. Five prior decisions have upheld injunctions against COPA (the original preliminary injunction decision, and two decisions each by the Court of Appeals and the Supreme Court upholding that injunction), but this is the first opinion entered after a full trial on the merits.
Judge Lowell Reed's decision provides some of the clearest arguments we've seen -- both for why COPA is unconstitutional, and for why it would be ineffective in protecting children. Reed also endorses the analysis long advocated by CDT: that voluntary Internet filtering tools provide a far more effective, and less restrictive, means for protecting kids online than do hamfisted attempts to censor broad swaths of online content.
This decision should withstand scrutiny on appeal. The Third Circuit Court of Appeals has previously been strongly skeptical of COPA. In the Supreme Court, the vote counting is a closer call, but all five Justices who upheld the preliminary injunction in 2004 are still on the Court, and more critically, the decision issued by Judge Reed strongly reinforces the factual conclusions on which the five Justices acted in 2004. The new guys on the block -- Chief Justice Roberts and Justice Alito -- replaced Rehnquist and O'Conner, both of whom dissented on COPA in 2004, and tea leaf reading suggests that Roberts and Alito may well end up being more supportive of free speech than their predecessors (or at least not worse).
One key question now of course is how Congress will take the decision.
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