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Court Snuffs Internet Smut Law

  Practice Focuses  -   POSTED: 2007/03/23 16:45

Nearly nine years after Congress passed the Child Online Protection Act (COPA), a Philadelphia federal court judge ruled Thursday that COPA is unconstitutional. As a result of his findings, Philadelphia Judge Lowell Reed issued a permanent injunction against enforcing the controversial, though never enforced, law.

Reed ruled that the American Civil Liberties Union's (ACLU) arguments against COPA, "true, reliable and credible and I accept those facts" and determined COPA violated the First Amendment's right to free speech.

Reed said that Attorney General Alberto Gonzales failed to "meet his burden of showing that COPA is the "least restrictive, most effective" alternative in achieving the "compelling [public] interest."

The ACLU filed a suit for permanent injunction relief against enforcing the law a week after Congress passed the measure in 1998. The organization argued that COPA overreached lawmakers' good intentions to protect children from "sexually explicit" material available online. Under COPA, children are defined as anyone under 17-years of age.

As written by Congress and signed by then President Bill Clinton, any commercial Web site operator that made "sexually explicit" material available to minors was, under COPA, subject to criminal and civil sanctions even if the online material was otherwise acknowledged as free speech for adults but deemed "harmful to minors."

COPA provided a safe harbor for Web site owners if they required the use of a credit card or other identification method used to verify age or, significantly, "any other reasonable measures that are feasible under available technology."

The ACLU immediately contended that Internet filtering technology was more feasible than any age verification methods, mitigating, the ACLU claimed, the impact on otherwise protected free speech. By the time the Bush administration inherited the political hot potato, it steadfastly maintained that filtering technology does not work and the threat of jail time and steep fines were the most effective defenses against making sexually explicit material available to minors.

Reed wrote that the ACLU's clients "post content on their Web sites including…resources on sexual health, safer sex, and sexual education; visual art and poetry; resources for gays and lesbians; online magazines and articles; music; and books and information about books that are being offered for sale." No matter Congress' valid interests to protect children, Reed ruled, such free speech restrictions on content stifled legal online free speech.

"I may not turn a blind eye to the law in order to attempt to satisfy my urge to protect this nation's youth by upholding a flawed statute, especially when a more effective and less restrictive alternative is readily available." Reed wrote.

As the case bounced all the way up from the district court to the Supreme Court and back down again, the Bush administration insisted filtering technology is not an effective tool for parents to censor adult content for their children. The ACLU argued otherwise. As the case dragged on for almost a decade, the Department of Justice (DoJ) eventually subpoenaed Google, Yahoo, MSN and AOL for proof child protection filters were ineffective tools against sites with sexually explicit material.

While Google successfully fought the subpoenas, the other search engines turned over evidence that convinced Roberts that "filtering products block both Web pages originating from within the United States and Web pages originating from outside the United States."

That determination, Roberts ruled, sank the DoJ's defense of COPA.

Roberts said that, in addition to their content-filtering features, filters can provide parents with a report indicating which Web sites a child visited, which sites were blocked, the number of e-mails and instant messages a child sent and to whom a child sent e-mail or instant messages.

Roberts further ruled that Internet-filtering technologies offer "money-back guarantees or free trial periods, so that parents can simply download a filtering product for free over the Internet and then use it for a set time period to see if it is something that they want to continue using."

"Based upon the testimony of [ACLU witnesses], which I accept, I find that filters generally block about 95 percent of sexually explicit material," Roberts ruled. He also determined that two separate reports commissioned by Congress, "have confirmed that content filters can be effective at preventing minors from accessing harmful materials online."

The Bush administration has the right to appeal the decision, but the DoJ had not responded to Roberts' decision by press time.


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