If at First You Don't Succeed...

…you might look like a fool by doing the same damn thing repeatedly.

A popular quote says that “insanity is doing the same thing over and over and expecting different results the next time” (it’s attributed to Einstein but its true origin is up for debate). This might be the best way to describe the folks who continue to push the Child Online Protection Act—even though it’s been struck down on multiple occasions (the United States Supreme Court blocked its enforcement in 2004).

On July 22, 2008, the Third Circuit Court of Appeals upheld the ban on COPA, citing the unconstitutional act’s broad scope and vague language. Ars Technica provides a nice history of the anti-First Amendment law that received bipartisan support under the guise of “protecting children”:

COPA was originally passed by Congress and signed into law by President Clinton in 1998 and was meant to protect children from “harmful” content on the Internet. Unfortunately for proponents of the law, its wording was very broad and would have required website operators to implement a number of measures to enforce “contemporary community standards.” According to the ACLU blog, it would have even barred adults from seeing material that was not appropriate for a child and would have affected, among other things, the online availability of sexual health information.

Here are sections of the actual text that helped to prove its broadness:

(6) Material that is harmful to minors. -- The term ‘material that is harmful to minors’ means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that--

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

How convenient. Both (A) and (B) are blatantly vague; we might have a shot at legitimacy with (C) but who’s defining these values? A committee of omnipotent overseers? The same politicians that created the unconstitutional act in the first place?!

COPA proved—and continues to prove—that politicians are willing to violate the Constitution, and particularly the Bill of Rights, in an effort to look good by coming up with creative titles for bills that would otherwise have people saying, “You can't do that!” Imagine if politicians had named COPA what it really is: the Vague Internet Censorship Act of 1998.

That doesn’t sound as good as Child Online Protection Act, does it? When you need to appeal to voters—especially soccer moms and NASCAR dads who pay more attention to The Bachelor or American Idol—which one would you sooner use?

Let’s take another one that was in the news a few months ago: the Fairness Doctrine. Ah, I see; it’s fair. We all like fairness, don’t we? Of course we do. Fairness is nice, like puppies and Cabbage Patch Kids. Oh, and Care Bears. I like Care Bears. They’re pretty and colorful and soft. Did I mention that they’re pretty and soft?

Now, if we were to give the Fairness Doctrine an accurate title, we’d name it the Government-Mandated Speech Doctrine. That doesn’t sound as nice, does it? Hell, soccer moms and NASCAR dads might even put down the remote and investigate something like that. We can’t have that happen. We should probably call it something warm and fuzzy.

And so we end up with things like the Child Online Protection Act and the Fairness Doctrine. They sound nice and they do their job: limiting our First Amendment rights.

References

Cheng, Jacqui. “Government Strikes Out on COPA—Ruled Unconstitutional Again.” Ars Technica. 22 July 2008.

Thierer, Adam. “Return of the (Un)Fairness Doctrine: The Media Ownership Reform Act.” Cato Institute. 20 Apr. 2004.

United States. Congress. Child Online Protection Act. 1998.

Ω