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15 Comm. L. & Pol'y 1 (2010)

handle is hein.journals/comulp15 and id is 1 raw text is: 




15 COMM. L. & PoL'Y 1-23 (2010)                        Routledge
Copyright c Taylor & Francis Group, LLC                Taylor&Franis Group
ISSN: 1081-1680 print/1532-6926 online                 T
DOI: 10.1080/10811680903446208



PROTECTING CHILDHOOD: RIGHTS,
SOCIAL GOALS AND THE FIRST
AMENDMENT IN THE CONTEXT OF THE
CHILD ONLINE PROTECTION ACT


ELIZABETH BLANKS HINDMAN*


        On January 21, 2009, the Supreme Court of the United States dis-
        missed the government's appeal in Mukasey v. ACLU, ending the
        Child Online Protection Act's decade-long journey through the legal
        system. Through the prism of collectivist and individualist political
        philosophies, this article examines how three levels of federal courts
        articulated the conflict between individuals' rights to speak and to ac-
        cess pornography and society's need to protect children from harmful
        material. First, it briefly examines legal philosophy literature to set the
        stage. It then focuses on how judges expressed the conflict between the
        individual and society. It concludes that the courts should have treated
        both the right to speech and the need to protect children as benefits to
        society, which would have allowed a logically coherent discussion on
        social values.



  On January 21, 2009, the Supreme Court of the United States dis-
missed the government's appeal in Mukasey v. ACLU,1 ending the Child
Online Protection Act's2 decade-long journey through the legal sys-
tem. Congress had passed the act, commonly known as COPA, in 1998
as its second attempt to regulate children's access to online pornogra-
phy.' The case worked its way through three levels of the court system
(some of them three times), four attorneys general and through all or
part of the terms of three presidents. This legal analysis of COPA is
founded upon on a critical question underlying the First Amendment's


  *Associate Professor, The Edward R. Murrow College of Communication,
Washington State University.
  1129 S.Ct. 1032 (2009).
  2Restriction of Access by Minors to Materials Commercially Distributed by Means of
World Wide Web that are Harmful to Minors, 47 U.S.C. § 231 (1998).
  3The Supreme Court overturned the first attempt, the Communications Decency Act,
47 U.S.C.S. § 223, inReno v. ACLU, 521 U.S. 844 (1997).

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