I suppose it’s in the nature of a federal constitutional trial about sexual speech that there will be moments of amusing contrast: between the formality of the setting and procedures and the graphic nature of the testimony and evidence; between the serious expressions on the government lawyers’ faces and the words that come out of their mouths (“COPA applies to juicyboobs.com”); between the government’s desire to criminalize sexually explicit content on the internet and their eagerness to broadcast it in the courtroom.
The first two days of our trial challenging the so-called “Child Online Protection Act” (COPA) have produced some memorable moments. The government’s opening argument, which previewed their theory of the case, proceeded as a kind of syllogism: (1) we all know that COPA was intended to target only “commercial pornography”; (2) plaintiffs, who provide sexual but indisputably valuable material, are not commercial pornographers; (3) ergo, plaintiffs are crying wolf about their fear of prosecution under COPA. There’s a hole in this argument: COPA never uses the words “commercial pornography”; it broadly targets descriptions or depictions of sexual acts or nudity. In fact, the word “pornography” has no legal significance — it’s in the eye of the beholder. As one of our plaintiffs memorably explained in her deposition: ” Is pornography the intent of the creator or the experience of the reader? When I was 13, I masturbated to Jane Eyre. Was Charlotte Bronte a pornographer?”
Although a judge, and not a jury, will decide whether COPA violates the first amendment, you wouldn’t have guessed that if you listened to the government’s opening arguments. We were admonished that we should not “let this trial become purely an intellectual exercise,” but should “take a moment” to remember the children who were being harmed by pornography. We were told of the young girl who “typed [her] dog’s name” into a search engine, and “pictures of naked girls kept popping up.” I couldn’t help wondering what the poor girl had named her dog. (Are they sure it wasn’t a cat?. . . .)
When time permits, I’ll send some dispatches from the trial. In the meantime, one of our plaintiffs, Nerve.com, is providing its own blog coverage, which I commend to you. [LINK] I’ll sign off with a mystery. There is a stone-faced man with a large suitcase who has been observing proceedings form a perch in the corner of the courtroom. Today, one of my colleagues politely asked him who he was. He said that he was “part of a group” that is working on a “replacement law” in case “this one doesn’t work.” (By not working, I take it he means is struck down as unconstitutional.) When another colleague asked him his name, he exercised his constitutional right to anonymity (i.e., he refused to answer). But I did overhear snippets of a conversation he had with government lawyers. “There are some things I can’t say,” he was saying, “but I can tell you that the Family Research Council and the Concerned Women of America . . . .” That’s all I caught. Who is he? Keep checking the blog in case I learn more.
