COPA’s friends, foes square off over regulating the Internet

Tuesday, January 5, 1999

Karen Jo Gounau...
Karen Jo Gounaud, Bruce Taylor, Solveig Singleton and Adam Clayton Powell III

NASHVILLE, Tenn. — Congress’ second attempt at regulating speech on the Internet, the Child Online Protection Act or COPA, violates the First Amendment and is overly broad, Solveig Singleton contends.

Singleton expressed her views today during a First Amendment Center panel discussion on COPA, “Protecting the Children or Restricting the Rights of Adults?”

“Although the law represents a sincere attempt by Congress to target commercial pornographers and is somewhat narrower than the Communications Decency Act of 1996 (CDA), it still will be an easy case for the U.S. Supreme Court,” said Singleton, director of information studies at the Cato Institute.

Singleton and three other panelists debated the merits of COPA in a heated discussion moderated by John Seigenthaler, founder of The Freedom Forum’s First Amendment Center. The panel also included:

  • Karen Jo Gounaud, president of Family Friendly Libraries.
  • Adam Clayton Powell III, vice president of technology and programs for The Freedom Forum.
  • Bruce Taylor, president and chief counsel for the National Law Center for Children and Families.

The panelists expressed sharp disagreements at times over the constitutionality of COPA and efforts to regulate content on the Internet. COPA criminalizes commercial online communication over the World Wide Web that is “harmful to minors.”

Signed into law last Oct. 21, it was challenged the next day in federal court in Philadelphia by the American Civil Liberties Union and sixteen other organizations ranging from an online condom distributor to a leading online service for the art community. The judge granted a temporary restraining order in ACLU v. Reno preventing enforcement of the law until the next court hearing scheduled for Jan. 20.

Powell agreed with Singleton’s assessment of COPA, noting that it was “troublesome on a number of levels.” He said the law would restrict adult free-speech rights, cause jurisdictional problems and substitute governmental responsibility in place of parental responsibility.

He also mentioned a recent federal court decision striking down another portion of the CDA, this one regulating sexual material over cable channels, as evidence that courts will view speech-restrictive laws on new media with suspicion.

Taylor and Gounaud disagreed with Singleton’s prediction that the law would likely be struck down by the Supreme Court when and if it reviewed the law.

According to Taylor, the use of a different legal standard — “harmful to minors” — in COPA as opposed to the “indecency” standard used in portions of the Communications Decency Act likely would allow it to survive judicial review.

“Congress has a compelling interest in protecting children from sexual material that is not obscene for adults,” said Taylor. COPA protects children in a narrowly tailored way, he said.

“The U.S. Supreme Court approved of the harmful-to-minors standard in a 1968 case,” Taylor said referring to Ginsberg v. New York. “Most states have harmful-to-minors laws that restrict minors’ access to sexually explicit material in the print medium.”

According to Taylor, all this law does is to apply those same standards to the Internet.

However, Singleton said that the U.S. Supreme Court had never specifically addressed the constitutionality of a harmful-to-minors law that regulated the display, in addition to the sale of, material that is deemed harmful to minors.

“First, display laws are somewhat broader than restricting the sale of similar materials,” she said. “Secondly, the Internet is simply not amenable to the idea of local community standards, which is a part of all harmful-to-minors laws.”

Taylor said that the scope of COPA is less broad than the CDA. “The Child Online Protection Act only targets commercial online speech, that is speech made for a profit.”

Furthermore, Taylor said that the law protects Web site operators who provide some means of verifying that a user is an adult, such as requiring the use of a credit card or personal identification number.

Gounaud agreed with Taylor that COPA is constitutional, but argued that the pornography industry, the American Library Association and the government are failing to help parents protect kids from pornography.

“I am outraged and angry at the lack of sincerity on the part of these so-called freedom organizations and the government in protecting our children,” she said. “I sincerely care about children and think that the government has a duty to protect them. The government owes our children. … The government has been half-hearted in defending the laws that have been passed.

“I am sorry this law might make it harder for adults to access their porn, but we’ve got to draw the line somewhere and protect our children,” Gounaud said.

Powell disagreed with looking for a legislative solution to the problem of children accessing pornography and pointed out that the Internet by its very nature is difficult to regulate. “The reality of the Internet is that efforts to regulate for instance political content on the Net in other countries such as China and Burma have been notably unsuccessful.

“The real protection to children is by parents teaching their kids values,” he said.

Singleton said that COPA, although it might have been passed to stop commercial pornographers’ Internet teasers, also might be applied to certain medical books or materials that discuss homosexuality a topic she called “particularly vulnerable” under any law that uses “community standards.”

“Taking a big-picture look at the problem, we need to ask ourselves about having a law like this in a free society,” Singleton said.

“All sorts of information is on the Internet that could potentially be bad for minors,” she said, pointing to examples of Holocaust revisionist history, animal-rights sites showing piles of dead animals, and a political novel on the Web that she said contained a graphic description of the flogging of a congresswoman who supports abortion rights.

“If we’re not comfortable with regulating content on the Internet in these areas and say ‘parents, you’re responsible,’ there is no real reason to treat sex any differently,” she said.

Gounaud called such logic “hogwash” and “extreme foolishness,” and compared safety of children in cyberspace to traffic safety. “Parents have to be responsible for their kids with regards to traffic safety,” she said. “However, the government has established street lights and stop signs to help navigate the way.

“Why can’t we do the same thing in cyberspace; why can’t the roads in cyberspace be protected?” she asked. “We need to make life a little easier for parents in protecting their children from this titillating material. We need to take the lead in establishing a high moral ground.”

However, Powell said that much of the pornography on the Internet comes from outside the country’s borders. He also warned against the message it would send that the United States was encouraging censorship.

Gounaud took issue with calling efforts to block children’s access to pornography censorship and asked the audience and the other panelists to remember the “real meaning” of the First Amendment as expressed in the Federalist Papers. She said the Founding Fathers only intended to protect political speech, not sexually explicit speech.

Singleton responded that the First Amendment rights of minors had been left out of the discussion on the Internet and governmental and parental responsibility. “It is tempting to dismiss the free-speech rights of minors,” she said, “but they are entitled to constitutional freedoms.

“You as parents wouldn’t want a policeman to conduct a warrantless search of an 8-year-old, so we must also take the free-speech rights of minors seriously.”