Yale Law Students Strike Down Internet Censorship Law

June 4, 1999 12:00 am

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NEW HAVEN, CT–An important case testing the boundaries of free speech on the Internet may be slogging its way through the Federal court system, but in the minds of a group of students at Yale Law School, the matter has already been decided, CyberTimes’ Carl Kaplan reports.

The verdict? Thumbs down for the Child Online Protection Act (COPA), Congress’s latest attempt to deal with the issues of speech, children and cyberspace. But it was a close call, and one reached with humor and creativity.

In a mock Supreme Court opinion produced by students in the “Constitution in Cyberspace” law seminar at Yale and posted on the Internet, “Justice Un-Souter,” writing for a majority of five justices, declared that the Child Online Protection Act violated the First Amendment in at least four ways. A biting dissent by “Justice Un-Scalia,” joined by three other conservatives, said that the statute was narrow enough to pass constitutional muster.

Professor James Boyle, who taught the seminar and stitched together the 44-page opinion from class contributions, said the mock opinion is not intended to predict the Supreme Court’s decision on the case.

“What we tried to do was to be quite rigorous in analyzing the key constitutional issues raised by COPA, but we also tried to be imaginative and playful in working out the legal twists and turns,” said Boyle, who is a visiting professor at Yale from American University’s law school and a recent fellow at Yale Law School’s Information Society Project.

“I personally think COPA is unconstitutional,” he added. “But I also think it’s a close case, which is reflected in our 5-4 mock decision.”

The Act, which was signed into law last year by President Clinton, made it a crime for operators of commercial Web sites to make material deemed “harmful to minors” available to those under 17 years of age. Web site operators who take steps to fence off the taboo material from minors, using mechanisms like credit-card registration, have a defense under the law.

The law never went into effect because it was challenged by a coalition of 17 organizations and businesses led by the American Civil Liberties Union and including the Internet Content Coalition, representing 23 Web publishers including The New York Times. A predecessor to the law, the Communications Decency Act (CDA), was struck down by the Supreme Court in 1997 as a violation of the First Amendment, in a case also brought by the ACLU.

Last February, Federal District Court Judge Lowell A. Reed Jr. issued a preliminary injunction in the COPA case, saying it was likely that the new law also violated the Constitution. The government is appealing that ruling to the Court of Appeals for the Third Circuit in Philadelphia. Legal experts say that the COPA case may reach the Supreme Court in another year or so.

Ann Beeson, a staff lawyer for the ACLU who helped litigate the COPA case before Judge Reed, read the Yale opinion on the Web site. She said in a posted comment on the class’s electronic bulletin board that the mock Court majority “came out the right way!”

“If only the Real Court had your sense of humor,” Beeson wrote.

In an interview, Beeson said that the section of the decision dealing with the ineffectiveness of COPA, owing to foreign content, was unlikely to be embraced by the real Court. “The Court didn’t buy that argument in the CDA case,” she said, “although I still think it should be part of the analysis.”

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