ACLU, Justice Department battle again over Net censorship law

Wednesday, January 20, 1999

Attorneys for the American Civil Liberties Union and the Justice Department are in a Philadelphia federal court today arguing over the constitutionality of Congress' second attempt to regulate speech on the Internet — the Child Online Protection Act or COPA.

In 1996, the ACLU and other groups persuaded a panel of three federal judges in Philadelphia to strike down parts of Congress' first legislative attempt at regulating speech on the Internet, the Communications Decency Act of 1996 or CDA. That ruling was later affirmed by the U.S. Supreme Court in its June 1997 decision Reno v. ACLU.

Beginning today, the ACLU and 16 other organizations will try to convince U.S. District Judge Lowell Reed that COPA, which some dub CDA II, should meet the same fate as the CDA.

In their second lawsuit, ACLU v. Reno, the plaintiffs assert that COPA suffers from the “same constitutional flaws” as its predecessor. According to the plaintiffs, COPA “restricts adults from communicating and receiving expression that is clearly protected by the Constitution.”

The Child Online Protection Act, which Congress passed in October, criminalizes the making of “any communication for commercial purposes” that is distributed via the World Wide Web and is “harmful to minors.” Penalties include a six-month imprisonment and $50,000 fine for each violation.

The day after COPA was signed into law, the ACLU and 16 other organizations ranging from an online distributor of condoms to a gay and lesbian online bookstore challenged it on First Amendment grounds.

Last November, Reed granted the plaintiffs' motion for a temporary restraining order to halt enforcement of the act. Reed later extended the restraining order until Feb. 1. In addition, Reed set a three-day hearing, which began today, to determine whether to grant a preliminary injunction to further prevent enforcement of the law until a final legal determination can be made on its constitutionality.

Chris Finan, president of the American Booksellers Foundation for Free Expression, which is a plaintiff in the case, said: “This case is as important as the original case against the Communications Decency Act. The same issues are at stake; freedom of speech on the Internet is at stake.”

Attorneys for the government assert that COPA is a much more narrowly drawn law that satisfies constitutional concerns. Supporters of the law insist that it targets only commercial pornographers who provide teasers — free pictures of sexually explicit material — to lure would-be customers to their sites.

However, opponents of the law fear it will chill the speech of many content providers who are not commercial pornographers.

A group of 20 organizations — including the Association of American Publishers, the American Society of Newspaper Editors and the Center for Democracy and Technology — have filed a friend-of-the-court brief arguing that the burdens of COPA will fall on more than just pornographers.

“Even though there have been efforts to narrow this statute, it is still plagued with uncertainty,” said R. Bruce Rich, a partner in the New York law firm Weil, Gotshal & Manges and the drafter of the brief.

“We have a very real constitutional concern that people who are not commercial pornographers but who nonetheless publish or otherwise deal with material of an adult nature will face the wrath of some zealous prosecutor somewhere who is armed with his own interpretation of what is harmful to minors,” he said.

Nevertheless, supporters emphasize that COPA uses a different constitutional standard — a harmful-to-minors standard rather than an indecency standard — and that COPA applies only to commercial sites on the World Wide Web. The CDA, by comparison, applied to virtually all Internet communications, including material on nonprofit Web sites.

Bob Flores, senior counsel for the National Law Center for Children and Families, says the use of the harmful-to-minors standard makes the new law constitutional.

“The harmful-to-minors standard is a concrete standard that has been understood and used for a long time in the print medium to protect children from sexually explicit material,” Flores said.

“This is a good standard that can be used uniformly across the country,” he said.

However, Norman Laurila, owner of A Different Light Bookstore, a plaintiff in the case, fears that the harmful-to-minors standard will subject his company to prosecution in more conservative communities. The bookstore caters to gay and lesbian issues.

“The law clearly states that the harmful-to-minors standard hinges on community standards, and there are millions of different community standards,” he said.

COPA does define “harmful to minors” by referencing the terms “average person” and “contemporary community standards.”

Laurila says that, while he feels comfortable with the community standards of New York, Los Angeles and San Francisco — the locations of his three bookstores — “there could be a small town in the South or Colorado Springs where material on our Web site is considered harmful to minors.”

“There are probably some communities out there that think any Web site that discusses gay and lesbian issues is harmful to minors,” he said.

Laurila also says that it is “unclear under the law who can press charges.”

“Even if the charges are totally bogus, the costs of legal defense could drive us out of business,” he said.

Defenders of the law, like Flores, say that content providers do have a defense under COPA.

COPA provides a defense to Web site operators who use some sort of adult-verification system — such as requiring use of a credit card number — to try to segregate minor users from adults.

Plaintiffs assert that such systems are economically unfeasible or “insurmountable for many speakers affected by COPA.” In its amicus brief, the National Law Center admits that some methods of adult verification “may be too costly for the smallest of commercial Web sites.”

But, Flores, who wrote an amicus brief in the case for four members of Congress who support the law, says there is now a “low-cost way for Web site operators to restrict access to minors.”

According to Flores, Web site operators can purchase software that tests credit card numbers to determine if they are valid. Many small businesses use this method — the Luhn Check Algorithm — already, he said.

“There is never a per transaction fee for use of the algorithm to verify a credit card number,” Flores said.

It is likely that attorneys for the plaintiffs and for the government will argue both over the constitutionality of the harmful-to-minors standard and the economic feasibility of technological barriers during the three-day hearing.

As plaintiff, the ACLU is scheduled to present its case in the first one-and-a-half days; the government will then have a corresponding day and a half to present its case.

Finan says that while there is no way to predict with certainty the outcome of the preliminary injunction hearing, he contends it is a “good sign that Judge Reed has substantial enough concerns with the legislation to grant a temporary restraining order and schedule a full hearing on the preliminary injunction motion.”