The second major Congressional effort to restrict access to constitutionally protected speech on the Internet, the Child Online Protection Act (COPA), was blocked on February 1, 1999 by a federal judge.
U.S. District Judge Lowell A. Reed Jr. issued a strong opinion blocking the law that was signed by President Clinton in October 1998. “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,” Judge Reed wrote in his opinion.
Judge Reed’s preliminary injunction stops the law from taking effect and replaces a temporary restraining order he had granted in November 1998.
Sponsors of the COPA legislation—Representatives Michael Oxley (R-Ohio), Thomas Bliley (R-Virginia), and James Greenwood (R-Pennsylvania)—all urged the government to appeal the decision all the way to the U.S. Supreme Court, if necessary. “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,” the COPA sponsors wrote in a news release. “Through COPA we seek only to apply the same common-sense standard to the World Wide Web as prevails in the rest of our free democratic society.”
The Justice Department has not yet announced if it will challenge the injunction with a full hearing. It has 30 days to appeal the decision or request a full trial.
Focusing narrowly on commercial Web sites, COPA was designed to address the problems found in the Communications Decency Act (CDA) that was passed in 1996 and overturned by the Supreme Court as unconstitutional in 1997. Where CDA criminalized making “indecent or patently offensive” material available to minors on computer networks, COPA required Web publishers to take steps to restrict access by children to material deemed to be “harmful to minors.” Violators would be subject to US$50,000-per-day fines and 6 months in prison.
Judge Reed found that COPA was not limited to commercial pornographers and that adult identification requirements were not the least restrictive means of protecting children from objectionable material on the Web. “locking or filtering technology may be at least as successful as COPA would be in restricting minors’ access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web site operators,” Judge Reed wrote in his opinion.
COPA challengers—the American Civil Liberties Union (ACLU) and a coalition of 15 businesses and associations—argued that the law was overly broad and threatening to a wide range of constitutionally protected speech. Concern for children accessing objectionable material would be better met through the use of filtering software.
The Department of Justice lawyers countered with arguments that society has a responsibility to restrict access to objectionable material by children.
The COPA hearing itself was not without controversy. Lawyers for the ACLU requested the hearing be held behind closed doors because some of the plaintiffs’ testimony would include trade secrets and financial information.
Specifically, Salon Magazine, a plaintiff in the case, argued that it is too expensive to comply with COPA. The Justice Department wanted to rebut that assertion by examining the financial condition of some of the plaintiffs, including Salon, involved in Web-based publishing.
Ironically, several news organizations—including CNET, the New York Times, and Ziff-Davis—joined the ACLU in its request. The news organizations insisted they needed the court’s protection to keep their business plans and financial records private. Other information companies argued that the proceedings should be held openly.
To resolve the situation, the ACLU executed a legal maneuver that dropped Salon as a plaintiff in one aspect of the challenge. This resulted in Salon‘s financial records being kept out of open court. While the Justice Department could challenge Salon‘s assertion that compliance with COPA would be too expensive, it was required to do so by referring the judge to sealed documentation.
Judge Reed ruled that the court’s proceedings would remain open but forbade the Justice Department from revealing Salon‘s expenditures or the specific number of page views that Salon promises to advertisers.
Salon‘s loyalty to the First Amendment could reasonably be said to stop just short of its lust for its investors’ checkbooks.
0 responses. Comments closed for this article.