Another defeat for "kiddie porn" law

Free speech wins again as the COPA is struck down by a court of appeals.

Published June 23, 2000 7:00PM (EDT)

Once again, the Child Online Protection Act -- the two-year-old online censorship law that purports to protect minors from "harmful" material -- has been dealt a blow in the courts. On Thursday, the United States Court of Appeals for the 3rd Circuit in Philadelphia upheld a preliminary injunction against the COPA, on grounds that "community standards" is an obsolete notion in a medium trafficked by global users from all walks of life.

It's been so long since the Child Online Protection Act was in the news that you might have forgotten about this distasteful law. As a refresher: The COPA was signed into law in October 1998 as the latest conservative attempt to shield kids from online pornography. The law demands that Web sites that offer material "harmful to minors" restrict access to adults only -- requiring a credit card or other "ID verification" before visitors could enter the site.

Believing that the law would chill free and open discussion online -- much like its predecessor the Communications Decency Act, which was struck down by the Supreme Court in 1996 -- the American Civil Liberties Union immediately filed suit, joined by Web sites and organizations such as PlanetOUT, the Electronic Frontier Foundation and The first victory in the ACLU vs. Reno II went to the ACLU in February 1999, when the U.S. District Court in Philadelphia granted a preliminary injunction preventing the law going into effect; then, the court declared that the law "imposes a burden on speech that is protected for adults."

But the Department of Justice, in turn, appealed the decision, sending it back to the courts -- and to the 3rd Circuit Court of Appeals in Philadelphia where, 16 months later, Judge Leonard I. Garth offered the latest ruling.

Thursday's decision to uphold the preliminary injunction takes an interesting look at the issue of online geography. The COPA had decreed that "contemporary community standards" would be used to determine which material was, indeed, "harmful to minors." But as Garth pointed out in his decision, the fact that the Net is a global medium means that acceptable "community standards" will be unfairly determined by the most conservative interpretation.

"Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of each particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability," Garth wrote in his decision. This, he added, "imposes an impermissible burden on constitutionally protected First Amendment speech."

This decision, while mirroring the decision of the U.S. District Court last year, adds a new twist to the legal arguments against COPA. Explains ACLU senior staff counsel Chris Hansen, "The trial court found that the statute was unconstitutional because it was impossible to verify age. It wasn't possible for a site to tell if someone is an adult or a minor. As a result, you had to eliminate everything that was potentially offensive to minors." But Garth's decision in the Court of Appeals, he explains, "said it's not age, it's geography. The standards in San Francisco are different [than those] in Mississippi. And because a site can't tell where someone is logging in from, the effect would be that Salon [or other sites] would have to tailor its speech to the most conservative locale."

So what's next? The Justice Department could choose to accept this ruling, and let the case drop. After all, Garth did write in his ruling that "we are confident that the ACLU's attack on COPA's constitutionality is likely to succeed." But, if the federal government insists on protracting the agony, it could insist on a trial for a permanent injunction. Or, it could try to send the case to the Supreme Court, even though the odds that the Supreme Court would uphold the COPA are slim.

The Justice Department is, thus far, mum on the decision it will make. Says spokeswoman Gretchen Michael, "We just received the decision. So our comment is: We will review the decision and take appropriate action."

In the meantime, unfettered free speech will continue online, whatever your local community standards might be.

By Janelle Brown

Janelle Brown is a contributing writer for Salon.

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