October 30, 2002 12:15 PM PST

Anti-porn law back in court

Congress' most recent attempt to restrict sexual material on the Internet is on trial. Again.

This week, the 3rd U.S. Circuit Court of Appeals in Philadelphia heard arguments for the second time in a lawsuit challenging the Child Online Protection Act (COPA).

The appeals court had originally overturned the 1998 law, but the case made its way to the Supreme Court. Last May, the high court ruled it was not ready to hear the challenge to COPA and sent it back to Philadelphia for additional proceedings, leaving in place, however, a preliminary injunction prohibiting enforcement of the law.

During 45 minutes of oral arguments Tuesday, the three-judge panel in Philadelphia seemed inclined to strike down the law again, an attorney for the American Civil Liberties Union said.

"We thought the arguments went very well, and we're confident that the judges will keep the preliminary injunction against COPA in place," said Ann Beeson, an ACLU staff attorney who is arguing the case on behalf of Web publishers.

Judge Leonard Garth participated in the oral arguments through a videophone link, a TV monitor taking his place on the bench.

Worldwide community standards
The reason the Supreme Court gave for its unusual decision this spring was that during the first round, the Philadelphia court had not considered the problem of community standards on a borderless Internet carefully enough.

COPA restricts commercial Web publishers from allowing minors access to sexually explicit material that has no scientific, literary, artistic or political value and that is offensive to local "community standards."

ACLU staff attorney Ann Beeson in front of the Supreme Court last year Hence, the Philadelphia judges had written in their June 2000 decision, COPA is overly broad because it requires Web publishers serving numerous communities to develop a system "whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded."

In their ruling in May, the Supreme Court justices puzzled over whether COPA's reliance on "contemporary community standards" does in fact violate the First Amendment's guarantee of free speech--and what, exactly, the community standards concept means when applied to the global Internet.

Can a sex site hosted in Las Vegas or San Francisco be prosecuted by a U.S. Attorney in a far more conservative jurisdiction--in, say, Tennessee?

Supreme Court Justice Clarence Thomas, who wrote the plurality opinion, saw no problems with the idea. "If a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the nation," he wrote.

While other justices may not have agreed outright with Thomas, they still seemed worried that if they determined COPA was unconstitutional because of the community standards argument put forth by the Philadelphia court, the decision could imperil many existing obscenity laws, which rely on similar language.

Plaintiffs in the continuing case include the American Booksellers Foundation for Free Expression, Salon.com, ObGyn.net, Philadelphia Gay News, and the Internet Content Coalition. CNET Networks, publisher of News.com, is a member of the Internet Content Coalition.

The Philadelphia court could offer up its new ruling at any time.

 

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