Court puts new Net censorship rules on hold -- for now

First ruling in "CDA II" case goes the way of law's opponents.

By Janelle Brown

Published November 20, 1998 8:00PM (EST)

For at least the next 10 days, controversial Web sites can breathe easy. On Thursday evening, after hours of testimony in a U.S. district court in Philadelphia, a judge issued a temporary restraining order against the enforcement of the Child Online Protection Act (COPA) -- the online censorship law better known as the CDA II -- just hours before the new law would have gone into effect.

"This is the first round, and there are many rounds to come, but for the time being, speech on the Net retains the same constitutional protection the Supreme Court says it deserves," said Barry Steinhardt, president of the Electronic Frontier Foundation, a plaintiff in the case.

For Steinhardt and the American Civil Liberties Union attorneys who won the ruling, today's hearing brought a sense of dij` vu: Two years ago, in the same court in Philadelphia, the ACLU battled (and eventually defeated) the implementation of the stringent Communications Decency Act. The COPA was signed into law in October as a follow-up to the original CDA; the bill requires Web sites containing material "harmful to minors" to institute an age verification system that will keep kids out, or face penalties of up to $50,000 a day and six months in prison.

Seventeen plaintiffs -- including the ACLU, the EFF, Salon, the American Booksellers Foundation and a coalition representing many news companies including the New York Times, Time, CNet and ZDNet -- have filed a suit arguing that the law restricts constitutionally protected adult speech online.

The court issued its temporary restraining order after hours of testimony from plaintiffs. Salon editor and CEO David Talbot and Norman Laurila, the founder and owner of the A Different Light gay and lesbian bookstores, both spoke about the chilling effects and financial damage the COPA would cause their online operations.

Laurila read aloud from some of the more controversial material posted in the A Different Light online bookstore -- a story of a young boy's messy attempts at masturbation -- and testified that the law could make the online bookstore a target for conservative legal action. "This act is very frightening to us," Laurila said in court. "There are some small towns in the South or Midwest that would consider the very existence of our Web site as harmful to minors."

Both Laurila and Talbot testified that adult verification systems could seriously damage their businesses by scaring off Web visitors unwilling to deal with the verification process or, in the case of A Different Light, give up their anonymity. If the sites chose not to institute the verification systems, both companies would have to censor the material on their sites.

"It would be a daunting prospect -- hundreds of hours of editors' time to go through the archive deleting material that we think would be offensive, and 'purifying' the overall site to make it acceptable to the most conservative communities in the U.S.," Talbot testified. "This would destroy Salon's editorial character and personality, and possibly our business as well. If we defy the law and are subjected to $50,000 fines per violation, this would eventually drive us out of business -- not to mention the fact that it's difficult to edit a publication from a jail cell."

The temporary injunction is a 10-day "emergency measure" that will last until Dec. 2. It protects Web sites from being prosecuted during that period, whether the law is eventually overturned or not. Steinhardt said he anticipates that on Dec. 2 the restraining order will be extended until Dec. 8, when a hearing for a more permanent injunction will take place. That injunction, then, would last throughout the hearing period.

And although the fight is far from over, Steinhardt feels that the defendants have a good chance. "We have a very sweeping opinion from the U.S. Supreme Court [in the decision striking down the original CDA] that says that speech on the Net is entitled to the highest constitutional protection, and that laws that limit that speech are going to be given the strictest scrutiny. Because of that, we feel are in a strong position going forward."

Janelle Brown

Janelle Brown is a contributing writer for Salon.

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