The focus on filters was not particularly surprising: Civil liberties groups and the government have been debating their effectiveness for some time. What was surprising, however, was that the American Civil Liberties Union (ACLU) and federal prosecutors found themselves arguing the opposite of their usual positions.

A few years ago, when the ACLU challenged the Child Internet Protection Act, a law that mandates software filters in public schools and libraries, it argued that filters are fundamentally flawed because they effectively censor legitimate content by blocking access to non-obscene sites.

Strategic Decision

Whatever concerns the ACLU might still have about filters was clearly outweighed by the organization's opposition to COPA.

"When the U.S. Supreme Court heard this case a few years ago, it essentially laid out a roadmap for the ACLU," said Marjorie Heins, a former ACLU attorney and founder of the Free Expression Policy Project. "The justices weren't willing to endorse a broad-based attack on obscenity laws, but they made it clear that if the evidence showed that filters were effective, that would certainly be a less restrictive approach than COPA."

The civil rights group defended the effectiveness of filters by introducing the testimony of several experts to show that there are multiple, readily available software tools that parents can use to regulate what their children see. That approach, the ACLU said, is better than a sweeping piece of legislation.

The government, on the other hand, criticized the very filtering tools it supported in CIPA while arguing for COPA, and said that given the problems with both underblocking (letting harmful materials through) and overblocking (preventing access to nonharmful materials), the only effective way to protect children was through a federal statute.

Judge Reed sided with the ACLU, concluding that "[a]lthough filters are not perfect and are prone to some over and under blocking, the evidence shows that they are at least as effective, and in fact, more effective than COPA in furthering Congress' stated goal [of protecting minors from harmful materials]."

Post-COPA Legislation?

Heins said that although she does expect the government to file an appeal, she thinks that the Supreme Court will uphold Judge Reed's decision striking down the law. "Since the Court last heard this case," she noted, "there are two new justices -- Roberts and Alito -- but I think that the outcome will still be the same."

If Judge Reed's decision is upheld, Heins said, then she does not think that Congress will attempt to pass another statute criminalizing online pornography.

"That doesn't mean that there won't be any legislation in this area," Heins pointed out. "Congress could still try to find ways to mandate the use of filters or other blocking tools. There's a proposal now, in fact, that would require schools and libraries to block all social-networking sites."

Nonetheless, Heins said, given the length of time before the COPA case winds its way up through the Third Circuit Court of Appeals to the Supreme Court, it might be years before a final decision is handed down.