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Too much sex or too much law?
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
11.19.06

In a legal battle pitting the good of our children — the essence of innocence — against the threat of porn and smut — four-letter words that ooze evil — one would think the outcome would be sure and simple. Not quite.

Instead, the legal challenge to the Child Online Protection Act now unfolding in a federal courtroom in Philadelphia is in its eighth year, has produced five different decisions at the trial, appeals and Supreme Court levels, and has had three different U.S. attorneys general as defendants.

Some of us know a little about this trial; most of us don’t. Yet it has serious implications for what all of us may say and see on the Internet and what our children shouldn’t.

COPA was signed into law in 1998 after the Supreme Court had struck down key provisions of the Communications Decency Act, the first major attempt to regulate sexual content on the Internet. Because of the legal challenges, COPA has never been implemented.

The COPA drafters tried to avoid some of the constitutional flaws of the CDA, but 16 organizations, led by the ACLU, challenged the new law, saying that it, too, raised constitutional concerns. The law requires that anyone on the World Wide Web who for commercial purposes deliberately makes available material harmful to minors will be subject to a fine of up to $50,000 and a prison sentence of up to six months, with each day of violation constituting a separate offense. Civil penalties of up to $50,000 for each violation also are allowed.

COPA provides Web-site operators offering sexual content with an “affirmative defense” to such penalties: They must restrict minors’ access to material considered harmful by requiring “use of a credit card, debit account, adult access code, or adult personal identification number” or other “reasonable measures” to verify users’ age.

The law’s supporters and government lawyers say COPA provides a useful tool for stopping harmful material at its source that is needed now more than ever because young people are increasingly exposed to sexually explicit material and solicitation online.

COPA opponents contend that the law is unconstitutionally broad, that it makes online speakers uncertain and fearful, thus chilling protected speech. They say filtering and blocking software are much better tools because much of the sexually explicit material originates outside the United States, while COPA targets only commercial Web sites in the U.S.

Opponents say technology and the Web’s growth have made COPA obsolete. Social networking, instant messaging, new video sites and other innovations pose challenges much different from those the law was designed to address.

They also say the millions the government has spent defending the law could have been put to better use in vigorous enforcement of existing laws directly targeting child pornography and predation.

In preparing for the current trial, Justice Department lawyers demanded billions of Web addresses and sample queries from the private files of Google and two other search-engine companies to learn what people look for online and what they find. This demand created concerns about Internet users’ privacy. Google resisted it. The courts sided with the government but greatly reduced the amount of material that had to be produced.

The Justice Department commissioned a study of the search-engine material, which was presented in the COPA trial last week. The analysis showed 1% of all Web pages contain sexually explicit material and 6% of search queries returned a sexually explicit Web site. Lawyers for the other side immediately suggested that the online world is not quite as rife with harmful material as the government argues.

As the trial ends later this month, Senior U.S. District Judge Lowell Reed must grapple with some complicated issues: the definitions of “harmful to minors,” “commercial purposes” and “contemporary community standards,” whether a distinction should be made between what’s appropriate for a 6-year-old and a 16-year-old, and whether there is a narrower approach to the problem than COPA lays out.

In their five decisions thus far, the courts at all levels have shown great concern for the First Amendment implications of COPA.

A possible preview of the result this time is the June 2004 ruling by the Supreme Court upholding the injunction against COPA and finding a “substantial likelihood” that it ran afoul of the First Amendment.

For Judge Reed, getting to that decision will be neither sure nor simple. But what he has to say certainly will have great impact on all of us, even those largely unaware of what is transpiring in that Philadelphia courtroom.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: pmcmasters@freedomforum.org.


Related

High court won't let online porn law take effect

Justices send Ashcroft v. ACLU II back to lower court for trial that could give government a chance to prove that COPA doesn't go too far. 06.29.04

Fight over COPA shifts to the practical: Is it obsolete?
Justice Department nonetheless will defend 1998 law that U.S. Supreme Court has twice kept from going into effect. 03.10.06

Government, Web sites spar over COPA
As trial opens over law passed in 1998 to protect children from online pornography, plaintiffs tell federal judge that measure is fatally flawed. 10.24.06

Study: 1% of Web sites are sexually explicit
Government lawyers introduce report in court as Justice Department seeks to revive Child Online Protection Act. 11.15.06

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

High court agrees to review child-porn law
11th Circuit had found pandering provision of PROTECT Act of 2003 overbroad, impermissibly vague. 03.26.07

Net-porn law relied too heavily on content restrictions, Court holds
By Tony Mauro But Justice Kennedy doesn't rule out that Child Online Protection Act could be found constitutional if someone can show it's least-restrictive way to protect kids online. 06.30.04

The feds Google for a chill on freedom
By Paul K. McMasters Government demands for data on search-engine activity — resisted by Google — put the frost of censorship in the air. 01.29.06

Indecency online
Pornography & obscenity

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