Eight years after Congress tried to criminalize the online posting of material deemed “harmful to children,” free-speech advocates and web site publishers took their challenge of the law to trial Oct. 23.
Salon.com, Nerve.com, and other plaintiffs backed by the American Civil Liberties Union (ACLU) are suing over the 1998 Child Online Protection Act (COPA). They believe the law could restrict legitimate material they publish online–exposing them to fines or even jail time.
Officials at the U.S. Department of Justice contend their primary target is commercial pornographers who use sexually explicit “teasers” to lure online customers.
The free teasers are available to nearly anyone surfing the internet, officials contend–children and adults alike. The pictures sometimes appear even when computer users are not seeking out pornography and typically lead potential customers to a web site that might require payment and age verification.
The Justice Department argues that it is easier to stop online pornography at the source than to keep children from viewing it.
The law, signed by then-President Clinton, requires adults to use some sort of access code, or perhaps a credit-card number, to view material that might be considered “harmful to children.”
It would impose a $50,000 fine and six-month prison term on commercial web-site operators who publish such content, which is to be defined by “contemporary community standards,” without imposing these restrictions.
The law has yet to be enforced, however.
The U.S. Supreme Court has twice granted preliminary injunctions, including one in June 2004 in which it ruled 5-4 that the plaintiffs were likely to prevail.
Another law, the Children’s Internet Protection Act (CIPA), requires schools and libraries receiving federal funding for computers and internet access to use “technology protection measures” such as filtering software to shield kids from harmful material online.
CIPA, which took effect in 2001, was upheld by the Supreme Court in 2003 (see “High court upholds web filtering law,” High court upholds web filtering law).
Although filtering software can block access to some constitutionally protected material, CIPA passes muster because adults in charge can disable the technology whenever they deem appropriate, the court ruled.
The ACLU argues that filters are a more effective way of policing the internet. It notes that COPA would not regulate any material posted overseas.
The government “will argue that parents are too stupid to use filters. It’s an insulting argument, and it’s wrong,” ACLU attorney Chris Hansen said in his opening statement on Oct. 23.
Eric Beane, a government attorney, acknowledged that it’s tempting to defer to families on the question of what is appropriate for children, but he said the patchwork of filters used by parents and schools don’t work.
“The evidence will show that a shocking amount of pornography slips through to children,” Beane said.
The nonjury trial in front of U.S. District Judge Lowell Reed is expected to take about a month.
The plaintiffs, technology experts, and even Supreme Court Justice Anthony M. Kennedy have expressed concerns that the law has already been surpassed by technology and the growth of the internet. Kennedy noted, for example, that filters can block web material posted offshore, but the law cannot control what foreigners post online.
In preparing for its defense of the law, the Justice Department sought internal files from search-engine companies and internet service providers. Google Inc. refused one such subpoena for 1 million sample queries and 1 million web addresses in its database, although it primarily cited trade secrets, not privacy issues.
A federal appeals court has twice struck down the law, most recently and conclusively in March with a ruling that the law is riddled with problems that make it “constitutionally infirm.”
Previously, the 3rd U.S. Circuit Court of Appeals had ruled the law unconstitutional on grounds that it allowed internet content to be judged by “contemporary community standards.”
The ACLU and other opponents of the law said that was a meaningless or risky standard to apply to the internet, which is available equally to the most conservative town or household and the most liberal.
The notion of what is acceptable can shift, and it would effectively give a veto to the most conservative dot on the U.S. map, the law’s opponents argued.
For this reason, the law is opposed by the American Library Association and some education associations, who say citizens and students could be denied online access to constitutionally protected information on such topics such as birth control or sex education.
In its first crack at COPA, the Supreme Court looked only at the standards question. In a splintered ruling in 2004, the high court delivered a partial victory to the government by ruling that the evaluation standard alone did not make the law unconstitutional.
The justices then sent the case back for a fuller examination of the other free-speech objections raised by the ACLU.
American Civil Liberties Union
American Library Association
U.S. Department of Justice