Porn-Free Web, Free Speech:
Are They Incompatible?

Congress is discovering that trying to regulate children's access to pornography on the Internet is an absurd exercise in lawmaking.

by Patricia Fusco ISP-Planet Managing Editor [November 18, 1999]

Keeping kids away from smut on the Internet may make for a popular election issue, but trampling on the First Amendment rights of adults is hardly a solution for keeping children away from X-rated Web sites.

Congress passed the Child Online Protection Act (COPA) on Oct. 21, 1998. The Act makes it a federal crime to use the World Wide Web to distribute "for commercial purposes" material considered "harmful to minors," with penalties of up to $150,000 for each day of violation and up to six months in prison.

In February of this year, U.S. District Judge Lowell A. Reed Jr. issued a preliminary injunction that barred COPA from going into effect. The government filed an immediate appeal of the injunction, but it appears that the American Civil Liberties Union will succeed in having the criminal statute struck down.

Oral arguments on ACLU v. Reno II were made last week before a federal appeals court in Philadelphia. ACLU attorneys squared off against government lawyers for a second time, determined to squash political attempts to extinguish Internet free speech.

Faulty loophole
According to the law, Web site operators may avoid criminal sanctions by instituting mechanisms to screen out minors. But requiring age authentication through a credit card or unique identification number to gain access to sexually explicit material on the Internet means that adults must divulge personal information about themselves thereby forfeiting their rights to privacy.

Unlike the COPA's forerunner, the Communications Decency Act, which was struck down in ACLU v. Reno I, Congress constructed the new child-protection law to be a "limited statute."

Because the law applied only to communications that are made for "commercial purposes" and only on the World Wide Web, Congress believed it could legally protect minors from harmful commercial Internet pornography.

Old dilemma; new context
Ann Beeson, ACLU national staff attorney, argued that the constitutional flaws in COPA are identical to the defects that led the Supreme Court to strike down the Communications Decency Act. The law requires website owners to install a registration system that would force adults to disclose their identity in order to access protected speech subjects like sexual advice columns, discussion boards on gynecology, and even art galleries.

The Justice Department argued that COPA seeks to establish the government's compelling interest in protecting children from harmful sexual material online and that website owners and service providers must install a registration system that would authenticate adult access to pornography on the Web.

If the 3rd Circuit Court upholds the injunction, the judges would essentially determine that there is no role for government to play in protecting children from harmful online material when adults' free speech rights are sacrificed.

Our children's keepers
Government lawyers argued that everyone is responsible for the social welfare of children online and that website owners could provide adult authentication access for free or for a fee to adults.

The ACLU contends that many filtering remedies are readily available to parents that want to protect their children from online pornography and other social maladies. Furthermore, many service providers offer clients the opportunity to filter their access to the Internet at no extra charge, or for a small additional monthly fee.

COPA is further hampered in court because it fails to clearly address "harmful to minors" material on foreign or free websites, adult chat rooms, or newsgroup discussions taking place through the Internet.

Sstandard needed
Because COPA does not clearly define a "contemporary community standard" as a national, geographic, or global region, the law is virtually unenforceable.

Lacking consistent, national community standards for access to online pornography, the court recognized that it would have to follow the most severe conservative community standards in the U.S. for COPA to be enforced.

Because the law purports to protect only material that would have "serious literary, artistic, political, or scientific value for minors," Congress would have created a law that in effect allows the John Birch Society, the Christian Coalition, and Pat Buchanan determine what Web content is of value to children.

If "of value" is the Web-content standard to which contemporary online communities must adhere, COPA extinguishes all free speech rights on the Internet and eviscerates the First Amendment.

Handcuffed
In his initial decision, Judge Reed held that government can essentially do nothing to solve the very real problem of children accessing material that may be harmful to them.

Service providers have gone to great lengths to substitute Web programming prowess for parental supervision, but COPA would transform service providers into functioning like a bouncer outside the entrance to a topless bar.

If Congress wants to wrap Web-based pornography in plain brown paper, it needs to find the means to empower family filtering programs without trampling the First Amendment rights of adults and, at the same time, obligating service providers to further subsidize the cost of thwarting smut.

—End