Online porn act ruled unconstitutional

Ruling hailed by civil libertarians as a major victory for free speech online

A federal appeals court decided Thursday that the federal Child Online Protection

Act (COPA) is an unconstitutional violation of First Amendment free speech

guarantees. The late ruling, by the U.S. Third Circuit Court of Appeals

in Philadelphia, upheld an earlier district court ruling and 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," said David Sobel,

general counsel of the Electronic Privacy Information Center (EPIC). Congress

passed COPA in 1998 in what it said was an effort to shield minors from

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 view 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 digital certificate proving

age.

The penalties for violators were 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 overly broad and an unconstitutional violation

of 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. The agency is now reviewing

the appeals court decision. The 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.

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