June 23, 2000, 12:11 PM PDT

Online Child Porn Act Ruled Unconstitutional

 

The federal appeals court upholds an earlier injunction that the act violates free speech rights.

By Keith Perine

A federal appeals court decided Thursday that the federal Child Online Protection Act is an unconstitutional violation of First Amendment free speech guarantees. The late ruling, by the U.S. Third Circuit Court of Appeals in Philadelphia, which upheld an earlier district court ruling, was hailed by civil liberties advocates as a major victory for free speech online.

 

"This calls into question any further congressional attempt to impose some kind of appropriateness standard on Internet content," says David Sobel, general counsel of the Electronic Privacy Information Center.

 

Congress passed COPA in 1998 in what it said was an effort to shield minors from online pornography on commercial Web sites. The law required sites to restrict access to material deemed harmful to minors. The statute defined such material as anything the "average person, applying contemporary community standards," would consider as "designed to pander to the prurient interest." The law also encompassed online content that "depicts, describes or represents" sex acts or genitalia. COPA mandated that Web sites adopt some means of verifying the age of their visitors, such as asking for a credit card number, "adult access code" or a digital certificate proving age. The penalties for violators: up to six months in jail and a $50,000 fine. Repeat violators could be fined $50,000 a day.

 

Civil libertarians immediately challenged the law as overbroad and unconstitutional to free speech rights on the Internet. Commercial online publishers such as Time, MSNBC and the New York Times joined the American Civil Liberties Union, EPIC and other public-policy advocates.

 

The plaintiffs argued successfully that it was impossible to clearly define the "community standards" test for commercial online content. The Justice Department echoed those concerns in a 1998 letter to Rep. Thomas Bliley, R-Va. But after COPA was enacted, the Justice Department was obligated to defend the act in the courts. It is now reviewing the appeals court decision.

 

The appeals court said that the "inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor … imposes an impermissible burden" on First Amendment rights. But the court also said it had "confidence and firm conviction" that new technologies could eventually help Congress pass a law that would pass constitutional muster. A special commission established by COPA is expected to continue its work of studying technologies and methods for restricting Web site content, including the creation of an ".xxx" Internet domain.

 

Thursday's ruling was the second big win for online civil liberties. In 1997, the U.S. Supreme Court struck down the Communications Decency Act as unconstitutional, which was an even broader law aimed at shielding minors from certain content on Web sites, news groups and Internet chat rooms.

 

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