February 1, 1999 3:40 PM PST

Federal judge blocks COPA

A federal judge has blocked the Child Online Protection Act, which aims to curb minors' access to online pornography, but threatens free speech on the Net.

Introduced by Rep. Mike Oxley (R-Ohio), the Child Online Protection Act (COPA) makes it a crime for commercial Web sites to give minors access to "harmful material," defined as any sexually explicit communication that lacks "serious literary, artistic, political, or scientific value." Violators face up to $50,000 in fines and six months in prison.

The law was set to go into effect today, but after a six-day hearing last week, U.S. District Judge Lowell Reed granted the American Civil Liberties Union and 17 online publishers and merchants a preliminary injunction to halt enforcement of the law.

"I conclude that, based on the evidence presented to date, the plaintiffs have established a substantial likelihood that they will be able to show that COPA imposes a burden on speech that is protected for adults," Reed wrote in his decision.

The Justice Department could appeal the ruling or ask for a full trial.

Against the DOJ's advice, COPA was signed into law as part of a more than $500 billion federal budget bill for fiscal 1999. The legal wranglings that followed are reminiscent of the passage of an infamous section of the Communications Decency Act, a provision of which made it a felony to expose minors to "indecent" material on the Net. That provision was struck down by the Supreme Court in June 1997.



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COPA foes, who have dubbed the law "CDA II," charged that, like its predecessor, the law is vague and would be applied beyond just pornography sites. Constitutionally protected content such as information about safe sex, gay and lesbian issues, medical conditions--even poetry--could be subject to COPA's restrictions. Witnesses testified that mandatory age checks would repel Net surfers and would be too costly to implement for plaintiffs such as Salon Magazine, A Different Light bookstore, and members of the Internet Content Coalition (ICC). (CNET: The Computer Network, publisher of News.com, is a member of the ICC.)

Judge Reed agreed that the plaintiffs are threatened by COPA.

"The plaintiffs have uniformly testified or declared that their fears of prosecution under COPA will result in the self-censorship of their online materials in an effort to avoid prosecution, and this court has concluded in the resolution of the motion to dismiss that such fears are reasonable given the breadth of the statute," he wrote. "Such a chilling effect could result in the censoring of constitutionally protected speech, which constitutes an irreparable harm to the plaintiffs."

Opponents argue that there only are two alternatives to prosecution under COPA--self-censorship or registration requirements for all site visitors to verify their age through credit cards and other means--a step plaintiffs contend will stifle online traffic and, consequently, advertising dollars.

Proponents of COPA, however, say the law only applies to Web sites that sell pornography without checking ID.

The government argued that the same requirements faced by adult bookstores and strip clubs in the offline world should apply to for-profit adult entertainment Web sites.

Once again backing up the plaintiffs, Reed found that age verification systems may not work.

"Here, this court's finding that minors may be able to gain access to harmful-to-minors materials on foreign Web sites, non-commercial sites, and online via protocols other than http demonstrates the problems this statute has with efficaciously meeting its goal," he said. "Moreover, there is some indication in the record that minors may be able to legitimately possess a credit or debit card and access harmful to minors materials despite the screening mechanisms provided in the affirmative defenses."

Reed said that, overall, upholding the First Amendment outweighed Congress's right to take broad action--even to protect children from "harmful" content.

"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," he said. "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."

Another civil liberties win
Along with the ACLU, the Electronic Privacy Information Center and the Electronic Frontier Foundation helped battle COPA in the U.S. District Court of Philadelphia. The groups also joined forces to take on the CDA in the same court.

"The judge has protected free speech in cyberspace," said ACLU associate director Barry Steinhardt. "The Justice Department told Congress the law was unconstitutional. Now federal a judge is telling Justice it's unconstitutional--it's time for Justice to takes it's own advice and stop defending this law."

DOJ attorneys argue that the plaintiffs have nothing to fear under COPA because 48 states already have "harmful to minors" statutes that could be used to go after Web sites now. Still, Judge Reed questioned why the COPA definition did not exclude "educational or medical information," as most state laws do.

Thomas Rielly, founder of PlanetOut, said that, despite the state laws, he now is less fearful that his gay and lesbian online community could be targeted by any prosecutor anywhere in the country.

"I'm still just waiting for the day that somebody in some jurisdiction would go after us just because we are gay," he said. "But it's important that gay and lesbian teenagers have access to the site. When I was going to junior high school in Illinois I had no one to talk to and I tried to kill myself--that is why I started PlanetOut."

Supporters of COPA vowed to fight on.

"We urge the Justice Department to continue defending this law at trial or on appeal all the way to the U.S. Supreme Court," the bill's author, Oxley, said in a joint statement with Rep. Tom Bliley (R-Virginia) and Rep. James Greenwood (R-Pennsylvania).

"In our view, traditional laws for minors at the state level have worked effectively to protect children from raw pornography without limiting adults' free expression or access to legal materials," he added.

Enough is Enough, which favored the "indecency" provision of the CDA, also wants the government to press forward.

"This law protects kids who are stumbling onto this material because the pornographers are aggressively peddling this stuff. We're disappointed, but we're not surprised," said Shyla Welch, spokeswoman for the group. "Congress passed COPA, and it's the will of the people."

 

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