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Fred Cate
IU Maurer School of Law

James Boyd
IU Maurer School of Law

Last modified: Thursday, January 22, 2009

Supreme Court decision ends battle over COPA

Jan. 22, 2009

BLOOMINGTON, Ind. -- The U.S. Supreme Court's decision Wednesday not to review a ruling striking down the Child Online Pornography Act (COPA) has brought to an end a more than 10-year effort by Congress to protect children from exposure to online pornography. This decision -- and those that preceded it -- cast doubt on the effectiveness of regulating a vast medium like the Internet, according to an Indiana University Maurer School of Law professor.

Fred Cate

The Supreme Court, without comment, rejected the chance to review a lower-court decision striking down COPA as unconstitutional. The law, which would have imposed strict restrictions on Web content providers, was ruled unconstitutional because of the borderless medium of the Internet.

Fred H. Cate, distinguished professor and C. Ben Dutton professor of law, said the decision shows that censorship through regulation rarely works.

"The outcome and the many decisions that led to this firmly establish that the First Amendment applies to Internet expression with the same force as it does to spoken or print expression," Cate said.

The legal battle over COPA has been ongoing since 1998, when Congress passed the law. COPA, which never took effect due to legal challenges, is now officially dead, Cate said.

"Cases like this demonstrate the futility of using national regulation to try to deal with a global medium," Cate said. "They show us again that while the Internet presents very real challenges, they are not likely to be solved by regulation."

Congress had argued that regulation was needed to protect America's youth. But the U.S. Court of Appeals for the Third Circuit ruled that the law likely wouldn't work, since an estimated half of all sexually explicit sites are operated outside of the United States.

The demise of COPA is a victory for anti-censorship advocates, Cate said.

"Perhaps most importantly, these types of cases remind us that censorship rarely works to achieve its intended purpose," he said.

Cate is the author of the award-winning book The Internet and the First Amendment: Schools and Sexually Explicit Expression and several articles on Internet free speech issues, including "Cybersex: Regulating Sexually Explicit Expression on the Internet" in Behavioral Sciences & the Law.