Child Online Protection Act clears committee, now heads to the full House

Friday, September 25, 1998

The House Commerce Committee yesterday approved unanimously the Child Online Protection Act, a bill designed to target commercial pornography found on the World Wide Web.

Rep. Michael Oxley, R-Ohio, introduced H.R. 3783 on April 30 as the House companion bill to Indiana Sen. Dan Coats' S. 1482, which was dubbed by many in the cyber-liberty community as “Son of CDA” or “CDA II” in reference to the Communications Decency Act of 1996.

The Child Online Protection Act attempts to comply with the U.S. Supreme Court's directives in its June 1997 Reno v. ACLU decision. In that historic opinion, the high court struck down the CDA provisions that criminalized “indecent” and “patently offensive” online communications.

The high court did so in part because the term “indecent” would apply to constitutionally protected material for adults and older minors and would silence speakers on noncommercial Web sites.

In response, Coats and Oxley both introduced measures designed to target only commercial pornographers. Their bills also substituted for the vague “indecency” standard a “harmful-to-minors” standard which, some experts believe, has a better chance of surviving judicial scrutiny.

The measure provides that “whoever, in interstate or foreign commerce, by means of the World Wide Web, knowingly makes any communication for commercial purposes that is harmful to minors (to any minor) shall be fined not more than $50,000, imprisoned not more than 6 months, or both.”

The measure would provide protection for those who restrict minors' access to harmful material by “requiring use of a credit card, debit account, adult access code, or adult personal identification number” to verify a user's age.

The National Law Center for Children and Families praised the actions of the Commerce Committee. Bruce Taylor, the organization's president and chief counsel, said: “The final version of this bill, which was originally introduced in the Senate by Sen. Dan Coats, is a very solid act. The crime is narrowly defined and I think properly. The definition of 'harmful-to-minors' is both constitutionally consistent with the Supreme Court and other state and federal court decisions on this subject and specifically mentions 'pandering' in the prurient-appeal prong, so I like it even more.”

Taylor added that “the immediate impact of this bill will be to outlaw the free pornography teasers now found on the front page of most commercial pornography Web pages.”

However, Ronald Weich, legislative consultant to the American Civil Liberties Union, says the measure is unconstitutional. “We are very disappointed that the House Commerce Committee took this action,” he said. “This measure is just as unconstitutional today as it was when it was introduced and suffers from the same flaws as the Communications Decency Act.

“It is hypocritical for Congress to use the Internet as it has to disseminate the Starr report and then attempt to suppress the free flow of information as it is attempting to do with this bill,” he said.

Freedom Forum First Amendment Ombudsman Paul McMasters said: “It is not just puzzling but also frustrating that members of Congress can't get past the idea that speech on the Internet is some sort of alien force that threatens our society. The real threat is the continuing attempt by Congress to censor and regulate online speech.”

Peggy Peterson, communications director for Oxley, said that “Representative Oxley was gratified that not one member of the committee spoke out in opposition to the bill. That shows that the bill has a broad range of support from both Democrats and Republicans.”

Peterson said Oxley is doing all he can to ensure that the full House will vote on the measure soon, “possibly as soon as next week.”