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3rd Circuit questions COPA's effectiveness during hearing

By The Associated Press
06.11.08

PHILADELPHIA — Justice Department lawyers tried again yesterday to revive a decade-old federal law designed to keep online pornography from children, despite previous court rulings that the law blocks too much legal speech.

The 3rd U.S. Circuit Court of Appeals judges hearing the case yesterday questioned the 1998 law's effectiveness, given estimates that half of all online porn is posted overseas, beyond the reach of U.S. law.

Free-speech groups also say the Child Online Protection Act misses the mark today, because it does not cover chat rooms, You Tube and other interactive sites that have emerged in the last decade.

Lawyers with the American Civil Liberties Union, representing Salon.com and other sites, argue that Internet filters block 95% of the offensive content, and can be set to comport with a child's age or a parent's sensibilities.

But only half of all families use them, DOJ lawyer Charles Scarborough countered.

"If there is nothing that works perfectly here, why not go with the thing that least offends the Constitution?" Judge Thomas L. Ambro asked.

Scarborough argued that the nation needs "a belt and suspenders approach" to the complex problem.

The three-judge panel did not indicate when it would rule. But the law faces an uphill battle in the 3rd Circuit, which previously remanded the case to a judge who, after a monthlong trial, deemed "COPA" unconstitutional.

"Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," Senior U.S. District Judge Lowell Reed Jr. wrote in his 84-page opinion in ACLU v. Gonzales.

The Justice Department hopes to overturn Reed's March 2007 opinion.

The 1998 law followed Congress’ unsuccessful 1996 effort to ban online pornography. The Supreme Court in 1997 deemed key portions of that law, the Communications Decency Act, unconstitutional because it was too vague and trampled on adults’ rights. It would have criminalized putting adult-oriented material online where children can find it.

COPA, which has never been enforced, would make it a crime for Web publishers to let children access material deemed "harmful to minors" by "contemporary community standards." The sites would be expected to require a credit card number or other proof of age. Penalties include a $50,000 fine and up to six months in prison.

Sexual health sites, Salon.com and other Web publishers filed suit and won a temporary injunction that the U.S. Supreme Court later upheld.

ACLU lawyer Chris Hansen said the government was trying to override the role of parents, who deploy various ways to monitor their children's computer use.

"I'm not here to say COPA's perfect. But filters aren't perfect either," Scarborough argued.

Judges Morton I. Greenburg and Michael A. Chagares joined Ambro on yesterday's panel.


Update
3rd Circuit: COPA violates First Amendment
Unanimous panel says filtering technologies, other parental control tools offer less restrictive way to protect children from inappropriate content online. 07.23.08

Previous
Federal court strikes down COPA
'Perhaps we do the minors of this country harm if First Amendment protections … are chipped away in the name of their protection,' judge says. 03.22.07

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