Clinton signs CDA 2 into law; cyber-liberty groups respond with lawsuit

Thursday, October 22, 1998

Numerous civil liberties groups filed a federal lawsuit this morning in Philadelphia challenging the constitutionality of Congress' second attempt to regulate speech on the Internet.

The lawsuit — led by the American Civil Liberties Union, Electronic Frontier Foundation and Electronic Privacy Information Center on behalf of 17 organizations — became a reality when President Clinton signed into law yesterday afternoon a $500 billion spending bill that contains provisions designed to protect children from harmful material on the Internet.

The plaintiffs are seeking an injunction to halt enforcement of the Child Online Protection Act, or COPA, which provides criminal penalties for those who distribute material that is “harmful to minors” without employing some sort of age-verification system to separate adult and minor users.

The law, sponsored by Rep. Mike Oxley, R-Ohio, was scheduled to go into effect 30 days after being signed into law.

Two years ago, civil liberties groups began their successful challenge of Congress' first foray into regulating online speech — the Internet indecency provisions of the Communications Decency Act of 1996, or CDA.

In June 1997, the U.S. Supreme Court in Reno v. ACLU struck down provisions criminalizing “indecent” and “patently offensive” online communications, finding that “the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech.”

While the high court recognized a government interest in protecting children, the court said “that interest does not justify an unnecessarily broad suppression of speech
addressed to adults.”

However, supporters of the new Internet pornography laws contend they will survive judicial review.

David Burt, president of Filtering Facts, said: “The new provisions are a lot more narrowly tailored. They employ a different standard and are specifically targeted at the teaser clips used by commercial pornographers.”

The massive spending bill also contains a provision sponsored by Sen. Dan Coats that contains language similar to the Oxley measure. The main difference is that COPA — also referred to as CDA 2 — imposes criminal penalties, while Coats' measure denies a tax break to those who fail to employ an age-verification system. A three-year tax break for Internet entrepreneurs, the Internet Tax Freedom Act, was also included in the spending bill.

Bruce Taylor, president and chief counsel for the National Law Center for Children and Families, said that the civil rights groups' challenge will ultimately fail.

“The Oxley COPA measure will be upheld for two basic reasons: First, the law only uses the harmful-to-minors standard which has been upheld by various courts for more than 30 years,” Taylor said. “Secondly, this law only applies to people who can comply financially with the adult-verification requirements — commercial pornographers on the World Wide Web.”

David Sobel, legal counsel for EPIC who will serve as co-counsel in the new lawsuit, said that supporters of the new legislation also argue that the legislation applies only to commercial speakers, not nonprofit organizations.

However, Chris Finan, president of the American Booksellers Foundation for Free Expression, another party to the lawsuit, says that even though there are differences between the new legislation and the ill-fated provisions of the first CDA, it still suffers from the basic flaw of censoring material allowable for adults.

“Our feeling is that the same principles are at stake as in the CDA — the rights of adults to get access to all constitutionally protected material available on the Internet,” Finan said. “We are convinced it is unconstitutional and needs to be attacked.”

Supporters of the legislation, such as Taylor and Burt, say that the different standard in what has come to be called CDA 2 — the harmful-to-minors standard as opposed to an indecency standard — is constitutionally significant.

In Reno, the Supreme Court said the Internet indecency provisions of the CDA differed from the law at issue in a 1968 case, Ginsberg v. New York. In that case, the court upheld the constitutionality of a New York law that prohibited selling minors material that was harmful to them but not obscene for adults.

In distinguishing the CDA from the statute in Ginsberg, the high court wrote: “The New York statute applied only to commercial transactions, whereas the CDA contains no such limitations.” The court also noted that the New York statute excluded any material that had serious literary, artistic, political or scientific value while the CDA “omits any requirement that the 'patently offensive' material … lack serious literary, artistic, political or scientific value.”

However, Finan disagrees that the use of the harmful-to-minors standard makes the legislation constitutional.

“Harmful to minors is a standard originally applied to books and magazines, things that people can buy in stores and carry home,” he said. “This is a new medium and when you cannot get access to see this material online, you can't have it or consume it. To bar adults from seeing this material except through the use of a credit card is to create an unconstitutional hurdle. It will chill the distribution of this material.

“This law will affect more than just pornography; it will affect material that has serious literary or artistic value.”