You can get a migraine trying to reconcile this circuit court drivel with the Supreme Court’s drivel about “evolving standards of decency that mark the progress of a maturing society.” As Justice Antonin Scalia put it, “Societies don’t always mature. Sometimes they rot.”
According to the 3rd Circuit, which has rarely found a porn law it can tolerate, the “least restrictive” thing the government can do to protect kids is to promote software filtering technology. Laws that punish criminals are too restrictive—so much for retarding rot.
Adding insult to injury, the court bought the ACLU’s argument here that software filters are sooooo effective, even though the same ACLU argued that filters are sooooo ineffective when it opposed filtering on computers in federally-funded libraries in the Children’s Internet Protection Act case.
Software filtering is effective, just ask Judge Alex Kozinski of the 9th Circuit. He’s the judge who ordered that filters be removed from court computers, and happened to have porn on his Web site while presiding over a trial of a guy who was operating a porn Web site. But I digress.
The problem is that filtering isn’t perfected to the point that it sticks to kids and installs itself on every computer they access. In other words, even if parents use it on the home computer, there’s a world of unfiltered computers outside the home kids can use. What the court gave short shrift is that the government’s “least restrictive means” is also supposed to be “equally effective.”
Their parents may not let them watch R-rated movies, but children can access countless porn emporiums on the Internet with a couple of mouse clicks. How crazy is it when the government can make the owners of brick and mortar porn stores keep kids out, and require an ID as proof of age, but the government can’t make them keep kids out of cyberspace porn stores by requiring an ID for access. Welcome to the parallel legal universe. Rot upon rot.
Here’s one for the judicial joke book. The trial judge actually wrote with a straight face: “Allowing COPA to take effect would actually do more harm to children in the long run. Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”
And you thought Howard Beale was nuts.
Here’s another one:
During oral argument, the Government contended that the First Amendment does not prohibit Congress from adopting a “belt-and-suspenders” approach to addressing the compelling government interest of protecting minors from accessing harmful material on the Web, with filters acting as the “belt” and COPA as the “suspenders.” But as counsel for plaintiffs correctly pointed out, under the First Amendment, if the belt works at least as effectively as the suspenders, then the Government cannot prosecute people for not wearing suspenders.
So instead of having an effective law, we got mooned by a bunch of judges on behalf of pornographers.
So let’s hear it for the judges. But for them, imagine the horrendous harms kids would suffer trying to grow into stable, mature adults without having watched women copulating horses and other barnyard beasts.
The First Amendment is virtually unrecognizable. James Madison, call home.