Congress’ efforts to muzzle pornography on the Web were dealt another serious setback on Thursday, when a federal judge ruled a 1998 law was unconstitutional and violated Americans’ First Amendment rights.
U.S. District Judge Lowell Reed in Philadelphia permanently barred prosecutors from enforcing the Child Online Protection Act, or COPA, saying it was overly broad and would “undoubtably chill a substantial amount of constitutionally protected speech for adults.” The lawsuit was filed by the American Civil Liberties Union.
Even though politicians enacted COPA nearly a decade ago as part of an early wave of Internet censorship efforts, the courts have kept it on ice and it has never actually been enforced. The law makes it a crime for commercial Web sites to make “harmful to minors” material publicly available, with violators fined up to $50,000 and imprisoned for up to six months.
A spokesman for the Justice Department said on Thursday: “We’re still reviewing the court’s opinion and we’ve made no determination what the government’s next step will be.” The Bush administration has the option of appealing its loss to the 3rd Circuit Court of Appeals.
Because of an odd legal legal twist, COPA has been bouncing around the legal system without a final resolution. The law already has been reviewed by the U.S. Supreme Court once–which agreed with a temporary ban on enforcement–but the justices said they wanted more information about the current state of filtering technology and stopped short of a definitive ruling on its constitutionality.
Reed’s 84-page opinion (PDF) appears to be intended to provide ample grounds for the Supreme Court to strike down the law for good. The opinion includes a detailed review of the filtering technology’s state of the art and concludes the programs are “fairly easy to install” and are “more effective than ever before.”
The almost-forgotten law found its way into the headlines last year after Justice Department attorneys preparing to defend COPA in Reed’s Pennsylvania courtroom sent subpoenas to Google, Microsoft, Yahoo, and AOL asking for millions of search records. Only Google fought the subpoena in court, and it managed to persuade a California judge to limit what information prosecutors would receive.
The Justice Department gave excerpts of the search engines’ databases (and, in some cases, anonymized search terms) to its expert, a Berkeley statistics professor named Philip Stark.
In response, Stark and a colleague prepared a report that said 1.1 percent of the Web sites cataloged by Google and MSN are sexually explicit. They also found that, in response to Web pages returned in response to the most popular search terms, AOL’s filter performed the best and blocked 98.7 percent of sexually explicit Web pages. Some filters, however, blocked less than 90 percent of such pages.
In his ruling on Thursday, Reed cited the testimony of one of the ACLU’s witnesses, Carnegie Mellon University professor Lorrie Faith Cranor, who found that filters generally block 95 percent of sexually explicit material. He also said that two congressionally-mandated studies “have confirmed that content filters can be effective at preventing minors from accessing harmful materials online” and are therefore more effective than criminal penalties.
First Amendment precedent makes this a crucial point: Anti-porn laws can only be upheld as constitutional if they’re the least restrictive and most effective way to shield minors from salacious material. Otherwise, they’re viewed as unconstitutional.
What if the Bush administration wins?
If the courts eventually uphold COPA as constitutional, a wide variety of Web publishers–from news to sex education to adult pornography–would have to revamp their sites or face criminal prosecution.
“Teaser” images on U.S. porn sites would likely vanish, since COPA says Webmasters who employ measures such as credit card verification or require an “adult access code” can’t be prosecuted because such mechanisms would typically keep out minors. Other sites would simply move overseas, where U.S. law doesn’t apply.
But COPA’s use of the term “harmful to minors” is broad enough to sweep in more mainstream publishers as well. The term is defined as material that lacks “scientific, literary, artistic or political value” for minors and that is offensive to local “community standards.”
That’s why plaintiffs in the COPA case include the American Booksellers Foundation for Free Expression, Salon.com, ObGyn.net, Philadelphia Gay News and the Internet Content Coalition. CNET Networks, publisher of News.com, was a member of the now-defunct Internet Content Coalition.
Reed acknowledged that Congress “apparently intended” COPA to apply to commercial photographers. But he ruled that the actual wording of the law is broad enough that mainstream publishers could “fear prosecution.”
When Congress was debating the law a decade ago, anti-pornography groups identified it as a key political priority and lent strong support to conservative Republicans such as Ohio’s Michael Oxley, COPA’s co-author, who is no longer a member of the House of Representatives.
The American Family Association once called COPA “Congress’ latest attempt to protect innocent children from the devastating effects on Internet pornography.” The Family Research Council filed a legal brief calling the Internet the “most intrusive, pervasive medium of communication ever created,” which can offer a “particularly dangerous method of transmitting” pornography.
COPA represents Congress’ second attempt to restrict sexually explicit material on the Internet. The Supreme Court in 1997 rejected the Communications Decency Act, which targeted “indecent” or “patently offensive” material, as unconstitutional.