Well, I guess so. Again, the Supreme Court chose to double-team us, releasing opinions on two different days. Ashcroft v. ACLU, et al. deals with the Child Online Protection Act, which provides that

Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

By a 5-4 majority, the Court ruled that such a ban was unconstitutional. COPA is a response to an earlier case, Reno v. ACLU, 521 U.S. 844 (1997), which ruled that a previous law designed to prevent children from accessing seedy web content was also unconstitutional.

Justice Kennedy, writing the majority opinion, begins by explaining the three-pronged definition of "harmful to minors," which is, coincidentally, the same definition the of "obscenity" as established by the Court in Miller v. California, 413 U.S. 15 (1973).

any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that--

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient
interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Well, sort of. Minus the clauses "for minors" and "with respect to minors," and the definitions of "sexual acts," this is almost exactly the language that legally establishes what is "obscene." Such speech is not protected by the First Amendment.

The Court's standard for whether or not a law is too restrictive is to see if the next-best alternative is more or less restrictive to liberty. If the next-best alternative is less restrictive, then the law is too restrictive and thus unconstitutional. In this case, the next-best alternative is filtering software that blocks certain web sites on a particular computer. Stevens wrote, "Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them." In issuing a blanket decree that stifles all potentially "harmful" speech, the law may accidentally catch legal speech in its net.

Or, the law may have a "chilling effect" on such legal-but-defined-as-harmful speech. The prospect of a fine for such speech and lengthy and expensive litigation could cause people not to produce such speech at all, de facto censoring the speech. Stevens concluded that, "[a]bove all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished."

Justices Breyer, Rehnquist, Scalia, and O'Connor filed dissenting opinions. Breyer insists that the law imposes no undue restrictions beyond the legal definition of "obscenity," which isn't protected by the First Amendment, anyway:

These materials are not both (1) "designed to appeal to, or ... pander to, the prurient interest" of significant groups of minors and (2) lacking in "serious literary, artistic, political, or scientific value" for significant groups of minors. §§231(e)(6)(A), (C). Thus, they fall outside the statute's definition of the material that it restricts, a fact the Government acknowledged at oral argument. Tr. of Oral Arg. 50-51.

Oh, but they are! The law's wording is not the same as Miller, for COPA includes the clause "harmful to minors," the meaning of which could be interpreted in any number of ways to squelch a kind of speech that is seen as harmful by one group and not harmful by another. Indeed, Breyer contends that "a serious discussion about birth control practices, homosexuality, ... or the consequences of prison rape," would not be illegal under COPA, since they do have SLAP (scientific, literary, artistic, or political) value. Yet, who is to decide whether or not such speech is "harmful"? One can imagine using such a definition to censor such speech, using "harmful" as a proxy for "morally repugnant" or something less objective or based in statute.

The Supreme Court reached the right decision today, ruling overbroad a statute that could have squelched speech on a very subjective basis.