The Senators who had the unmitigated gall to vote for the COICA bill (Combating Online Infringement and Counterfeits Act) violate our basic fundamental right to free speech. The net is the final frontier for truth and free speech. The cost is great: lots of lies and liars and Soros-funded propagandists -- but so what?
Techdirt explains: (hat tip Katherine)
First off, the bill would allow the Justice Department to take down an entire website, effectively creating a blacklist, akin to just about every internet censoring regime out there. Now, it is true that there is a judicial process involved. The original bill had two lists, one that involved the judicial review, and one that did not (it was a "watch list," which "encouraged" ISPs and registrars to block -- meaning they would block them). However, everyone seems sure that the second list will not be included in any final bill. Even so, there are serious problems with the way the bill works. Case law around the First Amendment is pretty clear that you cannot block a much wider variety of speech, just because you are trying to stop some specific speech. Because of the respect we have for the First Amendment in the US, the law has been pretty clear that anything preventing speech, due to it being illegal, must narrowly target just that kind of speech. Doing otherwise is what's known as prior restraint.
Two very relevant cases on this front are Near vs. Minnesota and CDT vs. Pappert. Near vs. Minnesota involved striking down a state law that barred "malicious" or "scandalous" newspapers from publishing -- allowing the state to get a permanent injunction against the publications of such works. In most cases, what was being published in these newspapers was pure defamation. Defamation, of course, is very much against the law (as is copyright infringement). But the court found that barring the entire publication of a newspaper because of some specific libelous statements barred other types of legitimate speech as well. The court clearly noted that those who were libeled still have libel law to sue the publisher of libel, but that does not allow for the government to completely bar the publication of the newspaper.
The Pappert case -- a much more recent case -- involved a state law in Pennsylvania that had the state Attorney General put together a blacklist of websites that were believed to host child pornography, which ISPs were required to block access to. Again, child pornography is very much illegal (and, many would argue, much worse than copyright infringement). Yet, once again, here, the courts tossed out the law as undue prior restraint, in that it took down lots of non-illegal content as well as illegal content.
While much of the case focused on the fact that the techniques ISPs were using took down adjacent websites on shared servers, the court did also note that taking down an entire URL is misguided in that "a URL... only refers to a location where content can be found. A URL does not refer to any specific piece of static content -- the content is permanent only until it is changed by the web site's webmaster.... The actual content to which a URL points can (and often does) easily change without the URL changing in any way." The argument was that taking down a URL, rather than focusing on the specific, illegal content constituted an unfair prior restraint, blocking the potential publication of perfectly legitimate content (the court here noted the similarities to the Near case): (read the rest here)
This is hardly a surprise but, this morning (as previously announced), the lame duck Senate Judiciary Committee unanimously voted to move forward with censoring the internet via the COICA bill -- despite a bunch of law professors explaining to them how this law is a clear violation of the First Amendment. What's really amazing is that many of the same Senators have been speaking out against internet censorship in other countries, yet they happily vote to approve it here because it's seen as a way to make many of their largest campaign contributors happy. There's very little chance that the bill will actually get passed by the end of the term but, in the meantime, we figured it might be useful to highlight the 19 Senators who voted to censor the internet this morning:
- Patrick J. Leahy -- Vermont
- Herb Kohl -- Wisconsin
- Jeff Sessions -- Alabama
- Dianne Feinstein -- California
- Orrin G. Hatch -- Utah
- Russ Feingold -- Wisconsin
- Chuck Grassley -- Iowa
- Arlen Specter -- Pennsylvania
- Jon Kyl -- Arizona
- Chuck Schumer -- New York
- Lindsey Graham -- South Carolina
- Dick Durbin -- Illinois
- John Cornyn -- Texas
- Benjamin L. Cardin -- Maryland
- Tom Coburn -- Oklahoma
- Sheldon Whitehouse -- Rhode Island
- Amy Klobuchar -- Minnesota
- Al Franken -- Minnesota
- Chris Coons -- Delaware
This should be a list of shame. You would think that our own elected officials would understand the First Amendment but, apparently, they have no problem turning the US into one of the small list of authoritarian countries that censors internet content it does not like (in this case, content some of its largest campaign contributors do not like). We already have laws in place to deal with infringing content, so don't buy the excuse that this law is about stopping infringement. This law takes down entire websites based on the government's say-so. First Amendment protections make clear that if you are going to stop any specific speech, it has to be extremely specific speech. This law has no such restrictions. It's really quite unfortunate that these 19 US Senators are the first American politicians to publicly vote in favor of censoring speech in America.