Justice Stevens’ Solitary 2002 Objection to COPA Analyzed

by Joe Izenman

Solitary dissents in the U.S. Supreme Court can offer a fascinating look into the strongest beliefs of the high court’s individual justices. In a recent blog post, the First Amendment Center provides an overview and analysis of several such opinions in the history of first amendment law, including the failed first challenge to the Child Online Protection Act.

COPA, intended as a barrier between children and pornography, was designed to impose criminal penalties for any material deemed “harmful to minors.” The Supreme Court first heard arguments against the act in Ashcroft v. ACLU I. From David L. Hudson with the First Amendment Center:

A lower court had found that the “contemporary community standards” language was too broad and not protective enough of free-speech. However, the Supreme Court majority said the case should be sent back to the lower court to examine other constitutional issues with the law — such as whether it was too broad for reasons other than the use of contemporary community standards and whether it was too vague.

Justice John Paul Stevens was the lone holdout in the decision, citing the threat that COPA posed to free speech. Hudson writes:

Justice John Paul Stevens filed the lone dissent. He recognized that the use of “contemporary community standards” in an online world threatened free speech. “The Internet presents a unique forum for communication because information, once posted, is accessible everywhere on the network at once,” Stevens wrote. “The speaker cannot control access based on the location of the listener, nor can it choose the pathways through which its speech is transmitted.”

While not a blatant rejection, the 8-1 decision in Ashcroft v. ACLU I to require further analysis on the part of the appellate courts delayed by two years the eventual rejection of COPA as unconstitutional. The CBLDF helped back the second challenge, and Ashcroft v. ACLU II was upheld by a 5-4 decision.

From the CBLDF’s 2004 newspost, regarding Stevens’ consenting opinion:

Stevens vindicated the position of many First Amendment advocates, including the CBLDF, stating, “Criminal prosecutions are, in my view, an inappropriate means to regulate the universe of materials classified as ‘obscene.’” He added, “COPA’s creation of a new category of criminally punishable speech that is ‘harmful to minors’ only compounds the problem.” Attaching criminal sanctions to a mistaken judgment about the contours of the novel and nebulous category of ‘harmful to minors’ speech clearly imposes a heavy burden on the exercise of First Amendment freedoms.”

Other notable dissents analyzed in Hudson’s article include Harlan Fiske Stone’s objections to a Pennsylvania law requiring the Pledge of Allegiance, and Justice Alito’s contention that the Westboro Baptist Church’s protests should not be protected. You can read the entirety of the article here.

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Joe Izenman is a freelance writer and musician in Tacoma, Washington. He owns a lot of comics and he’s pretty sure someone, somewhere would be offended by more than a few of them.