Judge extends delay in enforcement of Child Online Protection Act

Friday, December 4, 1998

The temporary restraining order that prevents enforcement of the new federal law regulating speech on the World Wide Web — the Child Online Protection Act or COPA — has been extended until Feb. 1 by a federal judge.

The American Civil Liberties Union and 16 other plaintiffs, ranging from online bookstores to online distributors of condoms, challenged the law in federal court on Oct. 22 — the day after COPA was signed into law — contending that it violates First Amendment free-speech rights.

On Nov. 19, U.S. District Judge Lowell A. Reed issued a temporary restraining order preventing the government from enforcing the law, which criminalizes commercial online communication that is “harmful to minors.”

The restraining order said that “the Court may modify this Order as the ends of justice require.”

Stefan Presser, legal director for the ACLU of Pennsylvania and one of the attorneys for the plaintiffs, said: “It was like pulling teeth, but we were able to reach an agreement with the attorneys for the government that the T.R.O. (temporary restraining order) should be extended.”

Presser maintains that COPA suffers from the same constitutional flaws as its predecessor, the Communications Decency Act of 1996 — portions of which criminalized “patently offensive” and “indecent” online communication.

“While the Child Online Protection Act may be more narrowly drafted than the similar provisions in the Communications Decency Act of 1996, the new law continues to put adults engaged in serious, meaningful discussions online at risk of imprisonment,” Presser said.

Presser gave as an example of speech that could be criminalized under COPA the Web site OBGYN.net, which features important discussions about sexuality, contraception, fertility and other related issues.

In their motion for a preliminary injunction, the plaintiffs argue that there are “many alternative means” to prevent children from accessing harmful material on the Internet. Foremost among these, according to the plaintiffs, are filtering software programs or “user-based blocking programs.”

“We take a hard-line position at the ACLU that parents have an obligation to protect their children when they are on the Internet,” Presser said. “But we also take a hard-line position that it is not the government's responsibility to put people in jail for material that some community might find harmful to minors.”

Reed moved the hearing on the plaintiffs' motion for a preliminary injunction from Dec. 8 to Jan. 20.