Today brings for free speech: A court declared the Child Online Protection Act (COPA), a federal Internet censorship law, unconstitutional, and forbade the government from enforcing it. It has taken nearly a decade of litigation—we first brought the suit in 1998, then called ACLU v. Reno—and two trips to the Supreme Court to achieve this result, so this victory for is especially sweet.
COPA made it a crime to put material that is “harmful to minors" on the Web. The flaws with this idea are legion, but most dangerous is this: It's impossible to tell in advance what material prosecutors will consider "harmful to minors,” placing many individuals, from artists, to journalists, to doctors, who choose to express themselves or provide useful information on the Web, in danger of criminal prosecution. Would federal laws find 's publication of the Abu Ghraib prisoner photos "harmful"? Would sex-educator be prosecuted for providing on her Web site? Would be subject to exorbitant fines for publishing its erotic photography online?
In addition, because the law only applies to domestic Web sites, COPA would be utterly ineffective in protecting children from the vast quantity of adult sexually explicit material that originates overseas.
In its opinion, the court described as "utterly meritless" the government's argument that COPA only reached commercial speech, specifically the speech of commercial pornographers. To the contrary, the court wrote: "COPA suppresses a large amount of speech that adults have a constitutional right to receive."
The court held that is an effective and less speech-restrictive alternative to protect children online. It noted that "[e]ven defendant's own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web."
One of the striking but little-noted aspects of this case is that although the government has asked for vast new power to prosecute individuals displaying material it decides is "harmful to minors," it has failed to use the tools is already has to keep kids safe online. The display of obscenity online is already illegal under federal law. The federal government could prosecute individuals for obscenity—but it hardly ever does. The court found that the federal government has initiated fewer than 20 prosecutions for obscenity unrelated to child pornography or sexual abuse of children. The court reasoned that "based on the recent sparse enforcement history of the obscenity laws . . . it is unlikely that COPA will be widely enforced, thus further limiting its effectiveness."
The federal government has already expended millions of dollars to defend this deeply flawed law. For the sixth time, a court has held that COPA seriously infringes free speech. The ball is in the government's court to decide whether to appeal yet again. I hope they do not, but if they do, we're ready to head to court once again to protect our .
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.