Will The Courts Finally Find One Of Congress's Attempt To Protect Children Online Constitutional?

from the we'll-soon-find-out dept

Wed, Oct 31st 2007 6:34pm — Mike Masnick

By now it should be clear that politicians just can't resist passing new legislation that they can use to claim they're "protecting the children" -- even when those laws quite often tend to be unconstitutional restrictions on free speech. While state legislatures keep on passing unconstitutional bans on video game sales to children (and keep getting smacked down by the courts), at the federal level, Congress basically just keeps trying to rewrite laws that get trashed by the courts, hoping that eventually, it will find that magic formula that's allowed. As you may recall, the worst parts of the Communications Decency Act got thrown out in court about a decade ago, only to be followed up by similar, but slightly different laws. There was the Child Online Protection Act (COPA) which was smacked down earlier this year.

The Supreme Court is apparently hearing a case about another, similar, but more narrowly focused law, called the Child Pornography Prevention Act -- and even though a lower court found the law unconstitutional, some feel that the Supreme Court's early questioning suggests it might not have a huge problem with the law. Of course, it sounds like they were helped along by the lawyer making the case against the law. When the justices asked him to describe a situation where an innocent person would be harmed by the law, he was unable to do so. The key issue is whether or not advertising that you have child pornography is still a crime -- even if what you have isn't actually pornographic, and apparently many of the justices don't have a problem with that being illegal. Of course, the lines are a little blurred by the details of this particular case, where the guy in question did, in fact, have child pornography -- it's just that it happened to be different child pornography than what he had offered. So while there is no question over his guilt on possession of child porn, there is the question of whether or not he's guilty of advertising it -- even though what he advertised didn't exist. Either way, it sounds like maybe, just maybe, Congress has finally constructed a statue for protecting children that is narrowly defined enough to remain constitutional.

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Filed Under: communications decency act, copa

12 Comments

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Max Powers at http://ConsumerFight.com, 31 Oct 2007 @ 7:10pm

Advertisement is at the Core of this Case
So if you advertise something that is illegal, but don't actually have what you are advertising, is that considered illegal? Is it because this case involves child porn that has brought this so much attention?

Not being a lawyer, I wonder what past decisions on this situation has been. I find it hard to believe this has never come up before. I'm pro FREE SPEACH but this case has me thinking. This will be interesting to see the outcome.
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- Anonymous Coward, 31 Oct 2007 @ 7:48pm
  
  Re: Advertisement is at the Core of this Case
  Not being a lawyer, I wonder what past decisions on this situation has been.
  I'm not a lawyer either but I believe that a similar situation has already been decided in the US drug laws where for example selling powdered sugar as cocaine carries the same penalty as selling real cocaine. I remember when these laws were introduced they said that such laws would only be used against drug offenses but it looks like they're branching out now. Since the courts haven't had a problem with it when applied to drugs I don't see why they would have a problem applying the same principle to everything else.
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Danny, 31 Oct 2007 @ 7:20pm

Give an inch...
Protecting children is a very noble cause (when the real purpose is to actually protect children and not to win an election) and this might one way to go towards that cause. But I am concerned that this may be the inch that will have lawmakers trying to take a mile later on down the road.
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Nick, 31 Oct 2007 @ 7:36pm

Better Coverage of the Arguments
I think Dahlia Lithwick writing for Slate has a much better account of the case than the NYT does:
http://www.slate.com/id/2176973/
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- Anonymous Coward, 31 Oct 2007 @ 8:25pm
  
  Re: Better Coverage of the Arguments
  I think Dahlia Lithwick writing for Slate has a much better account of the case than the NYT does
  
  The Slate story is an editorial opinion piece whereas the NYT story is just a regular report. Which you prefer I guess depends on whether you want your news straight or with opinion on top.
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Anonymous Coward, 31 Oct 2007 @ 8:01pm

Inducement
Since the US Supreme Court has already invented the crime of "inducement" in MGM v. Grokster I wonder if they will apply that principle here and in other cases as well.
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Shohat, 1 Nov 2007 @ 12:22am

I don't get it
I don't get it
What is this with America's obsession with constitution ? Why does it matter what it says there - it's just an additional set of laws.
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- BTR1701, 1 Nov 2007 @ 7:43am
  
  Re: I don't get it
  > What is this with America's obsession with
  > Constitution ? Why does it matter what it
  > says there - it's just an additional set
  > of laws.
  
  No, it's not. It's the supreme law in this country and any other law which conflicts with it becomes void. That's why it matters what the Constitution says in terms of the validity of this child porn statute or any other statute.
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- George Bush, 1 Nov 2007 @ 6:32pm
  
  Re: I don't get it
  What is this with America's obsession with constitution ? Why does it matter what it says there - it's just an additional set of laws.
  
  I totally agree.
  
  George Bush
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Anonymous Coward, 1 Nov 2007 @ 3:21am

every day we loose our freedoms in the name of protection what good does it do for our young soldiers to die defending and supporting that which we are willing to give up without a fight.
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Evil Mike, 1 Nov 2007 @ 4:15am

"What is this with America's obsession with constitution ? Why does it matter what it says there - it's just an additional set of laws."

The US Constitution was written first by intelligent people primarily as a list of things the government would NOT do. This list consisted mostly of those items which could be considered complaints about the governmental systems from which our countrymen derived their notions of justice, fairness, and equality.

The US Constitution can only be altered after a long, rather arduous process. This is quite intentional--as I'm sure there have always been those political "movers" willing to change anything and everything to suit them--and the founding fathers of the USA foresaw the need to safeguard the rights (or more specifically, the list of things the government would not do) of citizens in these future generations.

As such, it is the embodiment of the principles upon which this country was founded. Hence, our "obsession."
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127.0.0.1, 1 Nov 2007 @ 11:50am

What is Child Porn?
The only problem I have with these types of laws is the definition of Child Porn keeps on changing. Look at all the people who get in trouble for baby pictures intended for family only of children in the bath! Read up on some of what Debbie Nathan has to say about the subject and you'd be surprised at some of the things people mistake for Child Porn.

Now ask yourself if you want to take the risk of doing ten years per image just so you can send Grandma a copy of those pictures of little Suzzy and Timmy making wise with the shaving cream in the bathtub?
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