Hearing for temporary restraining order set in case challenging CDA 2

Wednesday, November 11, 1998

A federal district court in Philadelphia has set hearing dates in ACLU v. Reno, the lawsuit filed by the American Civil Liberties Union and numerous other civil liberties groups against the new federal law regulating speech on the Internet.

On Nov. 19, attorneys for the ACLU and the Justice Department will argue whether the court should issue a temporary restraining order preventing enforcement of the law. The court has also scheduled a hearing for a preliminary injunction for Dec. 8-9.

Last week, the ACLU and other groups, many of whom are plaintiffs in the lawsuit, wrote a letter urging Attorney General Janet Reno to refrain from prosecutions under the Child Online Protection Act, often called COPA or CDA 2.

The letter stated: “Like the Communications Decency Act, which was struck down by the Supreme Court last year, this law will immediately damage freedom of expression, the bedrock value at the core of the First Amendment. The act will also impose a structure on the Internet that places free speech and privacy in permanent jeopardy.”

COPA criminalizes commercial communication on the World Wide Web that is harmful to minors. The act provides a defense for Internet content providers that segregate adult users from minors through some sort of adult verification system.

However, the ACLU and other plaintiffs contend in their lawsuit that under COPA, “any speech that some community might consider to be 'harmful to minors' – including Ken Starr's report on the Clinton-Lewinsky scandal or a Mapplethorpe photograph – is potentially criminal if displayed for free on the World Wide Web and accessible by minors.”

The ACLU contends that the “constitutional flaws” of COPA are “identical to the flaws” found by the Supreme Court in two provisions of the Communications Decency Act of 1996 that criminalized “patently offensive” and “indecent” online communications.

In June 1997, the U.S. Supreme Court struck down those provisions in Reno v. ACLU, writing that the government's interest in protecting children on the Internet “does not justify an unnecessarily broad suppression of speech addressed to adults.”

Ann Beeson, lead attorney for the ACLU in the case, said: “We are pretty confident that we will prevail on the merits based on the strong precedent set in the first lawsuit.”

The only comment offered by John Russell, a spokesman for the Justice Department, was that “the matter is now in litigation.”