For the second time, a federal appeals court has ruled that a law meant to keep internet pornography away from children is unconstitutional.

In a 59-page opinion issued March 6, the 3rd U.S. Circuit Court of Appeals in Philadelphia said the Child Online Protection Act (COPA), which barred web page operators from posting information inappropriate for minors unless they restricted their sites to adults only, improperly restricted free speech.

The court said that in practice, the law made it too difficult for adults to view material protected by the First Amendment, including many nonpornographic sites.

The 3rd Circuit had previously ruled the law unconstitutional on grounds that it allowed the legality of internet content to be judged by “contemporary community standards.”

On appeal, the U.S. Supreme Court said that evaluation standard alone did not make the law unconstitutional, and sent the case back to the 3rd Circuit for further evaluation.

The new ruling, which upheld an injunction barring the government from enforcing the law, was praised by the American Civil Liberties Union (ACLU), which initiated the legal challenge.

“It’s clear that the law would make it a crime to communicate a whole range of information to adults,” said ACLU associate legal director Ann Beeson.

Calls to the Justice Department, which had argued the case for the government, were not immediately returned. The government may either ask the 3rd Circuit to rehear the case, or appeal again to the Supreme Court.

The law, signed by President Clinton and endorsed by President Bush, is one of several relating to internet decency that have been struck down by the courts.

A similar-sounding law, the Children’s Internet Protection Act, requires schools and libraries that receive federal funding to install filters to shield kids from online porn. That law is before the Supreme Court now, which heard arguments March 5 as it decides whether the portion of the law relating to public libraries is unconstitutional.

In the 3rd Circuit Court’s COPA opinion, posted on a court web site March 6, a three-judge panel said the law remains riddled with problems that make it “constitutionally infirm.”

Among the problems, the court said, is that in seeking to define material harmful to minors, the law made no distinction between things inappropriate for a 5-year-old to view and things harmful to someone in their early teens.

“Even if the statutory meaning of ‘minor’ were limited to minors between the ages of thirteen and seventeen, web publishers would still face too much uncertitude as to the nature of material that COPA proscribes,” the judges wrote.

The judges said that while the law sought to get around free-speech arguments to some degree by making the restrictions apply only to web operators who posted material for “commercial purposes,” it didn’t address exactly what level of profitability was required before a group would fall into that category.

Finally, the court said the screening methods suggested by the government, including requiring web-page viewers to give a credit card number, would unfairly require adults to identify themselves before viewing constitutionally protected material such as medical sites offering sex advice columns.

Asking people to submit credit card information before accessing such a page, the court said, would “drive this protected speech from the marketplace of ideas on the internet.”

“Many web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial,” the court said.

If it is eventually upheld, the law could mean six months in jail and $50,000 in fines for first-time violators and additional fines for repeat offenders. It has never been enforced.

Links:

3rd U.S. Court of Appeals
http://www.ca3.uscourts.gov

United States Supreme Court
http://www.supremecourtus.gov