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Justice Department appeals ruling that blocked enforcement of COPA

By David Hudson
First Amendment Center

The Justice Department has appealed a federal judge's ruling that blocked enforcement of the Child Online Protection Act — a federal law designed to protect children from pornography on the Internet.

On Feb. 1, U.S. District Judge Lowell A. Reed granted a preliminary injunction in ACLU v. Reno, which prevented government officials from prosecuting anyone under the federal law. Last October, the American Civil Liberties Union and 16 other groups challenged the law, contending it would infringe on First Amendment free-speech rights of adults in the name of protecting minors.

After a six-day hearing in January, Reed agreed with the plaintiffs' basic argument. Reed determined that even though the government had a legitimate interest in protecting minors from harmful materials, the law would likely intrude on free-speech rights. "Indeed, 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," Reed wrote.

COPA represents Congress' second attempt at regulating speech on the Internet. Congress' first try — the Communications Decency Act of 1996 — ended in failure when the U.S. Supreme Court struck down provisions of the law that criminalized "patently offensive" and "indecent" online communications in its June 1997 ruling in Reno v. ACLU.

COPA represents "congressional efforts to remedy the constitutional defects in the CDA," Reed wrote. COPA criminalizes the making of "any communication for commercial purposes" that is distributed via the World Wide Web and is "harmful to minors."

Government attorneys say COPA is different than the CDA and is constitutional because it employs a different constitutional standard — a harmful-to-minors standard rather than an indecency standard — and the fact it applies only to commercial Web sites. The CDA, on the other hand, applied to a much broader range of online communications, including nonprofit sites.

As a result of the April 2 appeal, a three-judge panel of the 3rd U.S. Circuit Court of Appeals will review Reed's preliminary injunction ruling, probably sometime in late summer or early fall.

ACLU national staff attorney Ann Beeson, who is leading the challenge of COPA, said: "We are very confident that the 3rd Circuit will affirm Judge Reed's strong ruling that the Child Online Protection Act violates the First Amendment."

Chris Finan, president of the American Booksellers Foundation for Free Expression, another plaintiff in the case, said: "The record established in the preliminary injunction hearing is strong and will be hard for the government to overcome.

"We are all holding our breath again now," he said.

A call placed to the Justice Department was not returned.

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