First Amendment wins another round online

First Amendment wins another round online: By Janelle Brown. Court rules that Net censorship bill probably won't pass constitutional muster.

Published February 2, 1999 8:00PM (EST)

"A sweeping victory" -- that is what the opponents of the Child Online Protection Act (or COPA) are calling Monday's court decision to uphold a preliminary injunction against the law. Although the COPA was supposed to go into effect Monday night, the decision in Reno vs. ACLU II will prevent the act from being enforced -- at least for the foreseeable future.

"Obviously, we're thrilled that the judge recognized the potential danger to free speech that the act represented," said a cheery Chris Hansen, the American Civil Liberties Union senior staff counsel who helped argue the case. "I think we're in very good shape -- his findings are fully grounded in the record, and he made a very careful and thoughtful decision."

According to the decision by Judge Lowell Reed Jr. of the U.S. District Court in Philadelphia, there is "substantial likelihood" that the plaintiffs will be able to prove that the COPA "imposes a burden on speech that is protected for adults."

The COPA was passed by Congress in October, ostensibly to prevent children from accidentally stumbling across pornography when they surfed the Web. The law requires Web sites that publish material that is "harmful to minors" to restrict minors' access to such material by requiring a credit card number or some other form of I.D. verification from visitors, or else face a $50,000-per-day fine and/or six months in jail. As a close relative to the Communications Decency Act -- the anti-porn Net censorship law that was struck down by the Supreme Court in 1996 -- the COPA has often been referred to as the CDA II.

Immediately after the law was passed, the ACLU filed a suit against it. Plaintiffs included Salon (our editorial explains why we joined); other Web publishers and site operators such as the Sexual Health Network, A Different Light Bookstore and PlanetOUT; and free speech organizations such as the Electronic Privacy Information Center (EPIC) and Electronic Frontier Foundation. In the suit, the ACLU argued that the COPA would restrict constitutionally protected speech online. The opponents of the law won a temporary restraining order against its enforcement in November; Monday's preliminary injunction suspends the law until the Department of Justice takes further legal action.

The decision came after six days of hearings in which attorneys from the Department of Justice showed how pornographic images can turn up in search engines and ACLU lawyers explained how credit-card requirements could damage Web businesses.

In his decision, Judge Reed acknowledged that the law would restrict not only pornographers but also a wide variety of Web sites providing myriad services and content. He also agreed with the plaintiffs' assertions that age verification services would scare away visitors and therefore cause financial harm to their sites. In addition, the judge noted that filtering software (such as NetNanny) would be a less restrictive way to protect children.

Although Reed, in his conclusion, noted his support for protecting children from pornography, he wrote that "the Court is acutely cognizant of its charge under the law of this country not to protect the majoritarian will at the expense of stifling the rights embodied in the Constitution ... Despite the Court's personal regret that this preliminary injunction will delay once again the careful protection of our children, I without hesitation acknowledge the duty imposed on the Court and the greater good such duty serves. Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."

Opponents of the COPA also claim that the law is so full of holes as to render it useless. Not only did the law use overly broad "community standards" to define what is "harmful to minors" (a conservative prosecutor could, for example, sue a sex-education Web site), but the law could never effectively prevent children from seeing pornography online. "I think the name 'Child Online Protection Act' is an illusion -- the sponsors of this bill intended to go after speech of adults for adults," says Barry Steinhardt, associate director of the ACLU and the former president of the Electronic Frontier Foundation. "They knew this law could not be effective in protecting children for two reasons: First of all, it applies only to Web sites -- not newsgroups, chat rooms or e-mail. And secondly the U.S. Congress cannot reach outside the borders of the U.S., and there is an abundance of sexually explicit material outside the U.S. They passed it because it was an election year, and they were bowing to pressure on the religious right."

But although the plaintiffs are celebrating today, the battle is not over. The Department of Justice has 30 days to appeal the decision or else request a full trial with yet more evidence and expert testimony. ACLU lawyers say they hope the Justice Department will simply let the court's decision stand, but they expect Justice to appeal.

And even then, there's always a good chance that Congress will pass yet another version of the Communications Decency Act.

"Congress isn't capable of an in-depth analysis of this complicated issue," explains David Sobel, general counsel for EPIC. "Fortunately, the courts are. That's largely why we've had a replay of what we saw with the CDA. It's the same dynamic: Congress for political reasons quickly passes a Net censorship law; the courts in a thoughtful and deliberate way strike it down. This is the second time it's happened, and I wouldn't be surprised if it happened a third or a fourth time."
SALON | Feb. 2, 1999

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By Janelle Brown

Janelle Brown is a contributing writer for Salon.

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