SOPA Resistance Day is upon us, and politicians and lobbyists are doing what they do best—retreating from earlier positions. The Motion Picture Association of America says DNS filtering is "off the table." Ditto, declare SOPA supporters Patrick Leahy (D-VT) and Lamar Smith (R-TX). Leahy admits that he has "heard from a number of Vermonters" on the issue. We'll bet he has.

But given the content industry's determination to ramrod this law through Congress in some form, it is worth taking a look at how whatever gets passed might fare under a court challenge. That means reviewing earlier efforts to regulate content on the Internet, among them the thankfully extinct Child Online Protection Act.

Like SOPA, with its vague prescriptions against sites "dedicated to theft of US property" or that confirm "a high probability" of copyright infringement, the courts took a look at COPA and saw an overbroad legal mess that needed to be stopped, and fast. Here's how that decade-long legal debacle went, and why it is relevant to this controversy.

Precision needed

Congress passed COPA in 1998. It is often confused with the far milder Children's Online Privacy Protection Act (COPPA), which limits how much personal data websites can collect about children. In contrast, COPA was a censorship law, pure and simple, but one that its designers hoped would not meet the fate of the 1996 Communications Decency Act. Overwhelmingly enacted by Congress and signed by President Clinton, the CDA stipulated that anyone who "knowingly" used an interactive computer service to display to someone under 18 a message or image that depicted "sexual or excretory activities or organs" could receive a two-year vacation in the slammer, or a hefty fine.

The Supreme Court bumped off the CDA in record time. "We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech," Justice John Paul Stevens wrote for the court in 1997. "In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."

Stevens notably added: "That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve."

So the forces of moral panic went once more into the breach, and came up with the Child Online Protection Act a year later. The "widespread availability of the Internet presents opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control," the law preambled. Therefore, a "prohibition on the distribution of material harmful to minors, combined with legitimate defenses, is currently the most effective and least restrictive means by which to satisfy the compelling government interest."

That prohibition read as follows:

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.

The legislation defined content "harmful to minors" as anything deemed "obscene" or that the "average person," applying "contemporary community standards," would find to be pandering to "the prurient interest" and lacked "serious literary, artistic, political, or scientific value for minors." Websites could find safe harbor from the law if they required credit card or digital verification access.

The least restrictive standard

COPA tied far more legal knots than the CDA. It placed its language framework within the Supreme Court's 1973 Miller versus California decision on obscenity, from which the "contemporary community standards" phrase came. And the law added a declaration insisting that it was the "least restrictive means" of solving the problem.

But no sooner did the legislation see the light of day, than a small battalion of publishers and civil liberties groups filed suit against it via the United States District Court for the Eastern District of Pennsylvania.

"Congress has enacted a broad censorship law," the plaintiffs noted, that would prohibit the online publication of crucial public documents or works of art. These could include the Kenneth Starr report on the Clinton-Lewinsky scandal, or a photograph by Robert Mapplethorpe. All that enforcement of the law against these works would require would be for some community to declare them "harmful to minors."

"The effect of the Act, like the CDA, is to restrict adults from communicating and receiving expression that is clearly protected by the Constitution," the advocates warned.

From the get-go, the case did not go well for the government. A judge for the Eastern District easily saw matters from the plaintiffs' perspective. COPA would deny access to legitimate content to adults who did not possess credit cards, and put serious interactive content behind verification walls, he noted.

"Evidence presented to this Court is likely to establish at trial that the implementation of credit card or adult verification screens in front of material that is harmful to minors may deter users from accessing such materials and that the loss of users of such material may affect the speakers' economic ability to provide such communications," Justice Lowell A. Reed wrote in a preliminary injunction against the law.

In addition, Reed challenged the legislation's insistence that it was the least burdensome approach to the problem. He invoked a crucial Supreme Court decision to bolster his argument—the "least restrictive means" standard outlined in Elrod v. Burns (1973): "If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties."

It is "not apparent" to this court that the government can prove that COPA is the least restrictive means available for protecting minors from objectionable content on the 'Net, Reed concluded.

Will deter adults

From there, the case bounced to and from the Third Circuit Court of Appeals on appeals and remands. But the Third Circuit panel repeatedly agreed with the Eastern District. COPA was not "narrowly tailored," the judges declared. The law "will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial."

In 2004, the Supremes concurred that far less intrusive means, such as filters, existed to help parents deal with online pornography:

Under a filtering regime, childless adults may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Promoting filter use does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. Filters, moreover, may well be more effective than COPA. First, the record demonstrates that a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. That COPA does not prevent minors from accessing foreign harmful materials alone makes it possible that filtering software might be more effective in serving Congress' goals. COPA's effectiveness is likely to diminish even further if it is upheld, because providers of the materials covered by the statute simply can move their operations overseas.

Four years later, the high court rejected a final bid from the Bush administration to consider the virtues of the law. "Ten years of futility," ran our January 2009 headline. "COPA finally, truly dead."

Is SOPA like COPA?

Critics of any attempt to parallel SOPA with COPA will doubtless offer an apples-versus-oranges analogy. But there are three ways that the two bills mirror each other.

First, both laws clearly concern the regulation of speech. The specific context differs. Now-defunct COPA tackled obscenity. SOPA addresses copyright infringement. But Congress obviously had the speech rights of Web content service providers in mind when they placed safe harbor provisions into the Digital Millennium Copyright Act. These limit the infringement liability of interactive site providers if they clearly have not detected the infringing activity, received no direct financial benefit from it, or are making a good faith effort to responsively police their site. Without them, tens of thousands of speech-encouraging and job-creating social networking sites that do their best to hold the line of piracy would face punishing lawsuits from a content industry that has never accepted Internet competition in the first place.

Second, it is very difficult to see SOPA as "narrowly tailored" to addressing infringement questions. Drafts of the law don't just classify bad behavior; deploying vague language, they create whole categories of rogue websites. Consider this section—a site is "dedicated to theft of US property" if it:

is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates [various sections of US copyright law].

Or:

is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation [of US copyright code].

Or:

operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation.

"Primarily designed"? "Limited use other than"? Any site that encourages uploading or content sharing by its members could be classified as such. And who is going to decide the threshold that represents a "high probability" of infringing use? Most worrisome, will the "promoting, or has promoted" clause be used to go after search engines that simply recognize sites accused of piracy?

There is no narrow tailoring in this bill. Even if the DNS redirecting provisions of the proposed law are scotched, this language is about as broad and overreaching as it gets.

Finally, it is difficult to construe SOPA as the "least restrictive" way to tackle the piracy problem. For all its lambasting by the content industry, there is the DMCA, whose notice and takedown provisions are regularly used by countless content holders, and honored by sites like YouTube. The success of the process is obvious to anyone who has searched for a video on the site and found a copyright violation removal notice instead.

In addition, Senators and members of the House have proposed a far less restrictive means of addressing the content industry's concerns. Senator Ron Wyden (D-OR) and Rep. Daryl Issa's (R-CA) OPEN Act turns the piracy site problem over to the International Trade Commission. The ITC would investigate such sites and, if rights holders won the case, order credit card, payment companies, and ad networks to stop doing business with the venue.

Would the courts see SOPA in these terms? Would they see COPA in SOPA? It all depends on what (if anything) comes out of Congress, and the extent to which various legal venues would see the SOPA controversy as a free speech issue. But if they do, the lessons of COPA are as plain as day. Congress should stick to narrowly focused content regulation strategies that look for the least intrusive means for protecting rights holders.

To re-quote the court: "If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties." SOPA doesn't even come close to meeting that standard.