November 19, 1998 3:55 PM PST
CDA II critics claim temporary victory
While today's decision was seen as a win for free speech advocates and a loss for the U.S. government, it is by no means final. The case is slated for yet another hearing in early December.
Nevertheless, Web site owners who had worried that their content would be illegal under the Child Online Protection Act (COPA) are getting a brief reprieve. In addition, the restraining order could be extended to 20 days.
Today's ruling is significant because critics of the COPA, who argued in court today that the law will hamper free speech on the Net, see it as a possible indication that the courts may continue to side with them.
"The judge was very specific that this is not a final ruling on the merits, that it is preliminary--but it still indicates the court's determination that the plaintiffs are likely to succeed in further litigation," said David Sobel, general council for the Electronic Privacy Information Center (EPIC). "Although...preliminary, this ruling is a strong indication that the plaintiffs are likely to prevail and that the statute is likely to be found unconstitutional."
Added Ann Beeson, staff attorney for the ACLU and cocounsel for the COPA case, "The act would have prevented adults from communicating and receiving a wide range of speech on the Net. This [temporary restraining order] allows that robust exchange of ideas to continue."
Against the Justice Department's advice, the COPA was signed into law as part of a more than $500 billion federal budget bill for fiscal 1999. Introduced by Rep. Mike Oxley (R-Ohio), the law requires operators of commercial sites to confirm the identity and age of visitors. Those that don't comply face up to $50,000 in fines and six months in prison for each time an underage surfer gets a hold of "harmful" material.
Led by the ACLU, EPIC, and the Electronic Frontier Foundation, the plaintiffs in the case today convinced federal Judge Lowell Reed Jr. to temporarily block enforcement of the law, which had been set to go into effect at midnight.
Reed said he issued his ruling based on the likelihood of the plaintiffs' success; the fact that the law would cause "irreparable harm to the plaintiffs"; and "the balance of harm" between the two parties, meaning the Web sites were more at risk than the government if the law were to go into effect on schedule.
Foes have dubbed the law the Communications Decency Act II because they say, like its predecessor, it is vague and will be applied beyond just pornography sites.
Online news publishers, merchants, and other sites filed the lawsuit based on their belief that the law will put a wide range of Web site operators in danger of prosecution for what amounts to constitutionally protected content, such as information about safe sex, gay and lesbian issues, medical conditions, or even poetry.
A large portion of the court arguments surrounded the economic and technological feasibility of verifying the identity information of all visitors to a Web site.
Toward that end, Reed asked the witnesses in the case pointed questions about how verifying age would affect Web sites, such as how much systems would cost, what kind of systems would be effective, and how the systems would impact business. He seemed to be trying to figure out how viable age-verification on the Net is for publishers and e-commerce sites.
Both of the witnesses testifying--Norman Laurila, founder of gay and lesbian book store chain A Different Light, and David Talbot, editor and chief executive of Internet magazine Salon--argued that their content could be deemed "harmful to minors" and that age-verification systems would turn away potential visitors to their sites.
But proponents of the law have pointed out that 48 states already have "harmful to minors" statutes that could be used to go after Web sites. They add that COPA is not aimed at sites like Salon and A Different Light, which contain material such as erotica and sexual descriptions, but rather at more hard-core pornographic sites.
The government questioned witnesses only briefly, but Bruce Taylor, president and chief council for the National Law Center, which helped draft the law, noted: "The test for [what is] harmful to minors is a constitutional legal test that has been upheld by the Supreme Court.
"[The witnesses] probably are not subject to prosecution, unless they post Penthouse- or Hustler-like materials," he added.
The bottom line, he said, is that, "If you can't sell it to a kid under state law, you shouldn't have it up online. They have the right to do everything that is lawful."
But online sites argued that the law could wind up applying local standards to the Web sites, which are, by their very nature, international. And clearly, the judge sided today with them, deeming that the law could cause them great harm.
"The law would...force us to close the Web site," testified Laurila of A Different Light bookstore. "If it goes into effect, we would have to burn the midnight oil to shut it down.
"The linchpin for us is community standards," he added. "Some towns...could consider the whole idea of our Web site as harmful to minors."
Salon's Talbot said that, because the site occasionally publishes columns containing sexual content, it would come under jurisdiction of the law.
"Suddenly, Salon would put up a gate saying you have to register. Our circulation would plummet overnight," he argued. "Anytime you stop the normal impulse of a reader to click on your site, you lose traffic."
In an effort to prove that point, he noted that, for two years, Salon's chat area required registration, but once Salon removed the registration requirement, traffic skyrocketed.
Talbot argued also that, because age-verification systems likely would not be viable or effective, the site's only alternative would be to remove any potentially objectionable content.
It would force Salon to "purify our site to make it acceptable to the most conservative community," he said.
Today's proceedings were not the first time that the two sides in the battle over adult content online have squared off in court. More than two and a half years ago, the same forces met up in the same U.S. District Court here to battle over an infamous section of the Communications Decency Act, which made it a felony to transmit or display any "indecent" material on the Net that could be obtained by minors. In a landmark ruling, the Supreme Court struck down that provision last June.
This time, the issues were similar, though not exactly the same.
"Because the COPA provides no way for speakers to prevent their communications from reaching minors without also denying adults access to them, the COPA directly threatens plaintiffs, their members, and millions of other speakers with severe criminal and civil sanctions for communicating protected expression on the Web," the ACLU et al. brief stated. "The COPA also violates the rights of millions of Web users to access and read constitutionally protected speech."
The government countered in its brief that "the act is not to ban all communication deemed 'harmful to minors.' Rather, COPA only regulates the manner in which 'harmful to minors' communications are made so that they are not easily accessible to minors."
The "harmful to minors" standard usually is applied locally, but the so-called CDA II essentially would create a national standard, the plaintiffs argued. That means a Web site based anywhere in the country could be charged in any jurisdiction for posting material an individual prosecutor claimed was "harmful," they added.
Supporters of the Child Online Protection Act argued that it will require adult-oriented sites to put a "cyberwrapper" around their content, and charge that the law is tailored narrowly, only applying to commercial sites that offer any communication, image, or writing containing nudity or actual or simulated sex, and that "lacks serious literary, artistic, political, or scientific" value.
Many of the media companies that published independent counsel Kenneth Starr's sexually explicit report accusing President Clinton of perjury also are taking issue with the proposed law, including the Internet Content Coalition, whose members include the New York Times, Sony Online, CBS New Media, Time, ZDNet, and CNET: The Computer Network, publisher of News.com.
Also in court today, the government objected to the Starr report being introduced into evidence.
"The Starr report is clearly something that is outside of the scope of the statute because of its political [nature]," argued government attorney Karen Stewart. The judge denied her objection, however, on grounds that, if the sites fear they could face prosecution for posting the report, they would consider not posting it.