THE CHILD ONLINE PROTECTION ACT OF 1998 (COPA)
Nov. 2007. The ACLU submitted it’s brief in response to the DOJ brief. Link is here. (Requires latest Adobe). Please refer to that blog (above) for subsequent updates.
The new trial begins
Logon is through a closed, secure executable application rather than from conventional secured Internet logon through https. I have not yet tried it.
More info on 2:98-CV-05591-LR, ACLU v. Gonzales.:
(note links on upper left panel to mp3 files for audio discussions; note also these links:)
Plaintiffs’ Bios: Page 1—master page above, right column; Page 2 (I appear hear as a critic of the military “don’t ask don’t tell “policy on gays)
ACLU news release: http://www.aclu.org/freespeech/internet/27144prs20061023.html
Blog (from ACLU): http://blog.aclu.org/index.php?/categories/6-Free-Speech
Blogs (from other litigants): http://www.nerve.com/nerveblog/nervecopa.aspx?blogid=121
From Scarleteen: (Heather Corinna): http://www.femmerotic.com/journal/2006/11/07/at-the-copa-cabana/
Opening statement from Chris Hansen (representing Nerve) from COPA trial. http://www.nerve.com/dispatches/hansen/copa/
Philadelphia Inquirer Story Nov. 13 by Joseph A. Gambardello, “Crackdown on porn sites in court fight” (may require online subscription); the article title is, I think, a mischaracterization. He has followup stories on Nov. 20 and Nov. 21
The Associated Press story is Maryclaire Dale “Justice Department attorneys, ACLU lawyers argue validity of 1998 online porn law before judge” from the Midland Daily News (MI), Nov. 20 (may become archived or require subscription)
The Reuters story is by Jon Hurdle, “U.S. Judge to Rule on Landmark Internet Porn Law”. Nov. 20 (may become archived or req sub)
Wired news story from Oct 23: http://www.wired.com/news/wireservice/0,71993-0.html?tw=wn_politics_1
YNOT story from Q. Boyer: http://www.ynot.com/modules.php?op=modload&name=News&file=news_article&sid=17942
Scott Rosenberg’s Wordyard blog from salon.com http://www.wordyard.com/2006/10/25/copa-trial-begins/
Trial transcripts master: http://www.aclu.org/freespeech/internet/27171res20061023.html
(an important concept introduced on Nov. 9 is “implicit content”; see my vocabulary link)
(As of 11/16 it appears that the trial is up to plaintiff’s rebuttal and closing arguments are expected soon. There will be eight points of fact to rule on. My exhibit is 118 and I cannot tell for sure if it is still in the record, but I believe that it still is.)
Apparently closing arguments
were made on Monday
From closing arguments:
Exhibits by ACLU at closing
I understand that briefs for a new trial in the original
district court in
There is a new effort in 2005 to curb access of Internet pornography (as contrasted with “harmful to minors” materials) by minors. Go to this link.
There is a conceptual discussion at my blogspot.com link.
Please note the Supreme Court ruling of
Later information (9/2005). The discovery process for the trial started in September 2005. It is not expected at the present time that I will provide detailed testimony, depositions, or similar materials for the trial. There is a conceptual question as to whether or not the site that I run now “doaskdotell.com” would reasonably fit the definition of “commercial” as the DOJ is likely to construe it in defending the statute. Generally, there may be questions as to whether plaintiffs who mostly give away free content meet the intention of the statute (that is, have standing to sue) as it is likely to be interpreted now. There may also be questions as to whether the “harmful to minors” definition is going to be more narrowly construed as limited to “pornography.” Of course, this could change again in the future. The EFF reference is at http://www.eff.org/legal/cases/ACLU_v_Reno_II/
The Child Online Protection Act of 1998, also known
informally as the “Son of
“Harmful to minors” means, in rough terms, “obscene with respect to minors.” The law has been challenged as putatively unconstitutional by many web operators on several grounds including (1) the vagueness of the term “harmful to minors”, (2) vagueness in the way “community standards” could be applied on the Internet with respect to almost any definition of “harmful to minors,” (3) the technical and economic difficulty of providing adult verification for free content for sites not actually intended to sell pornography as usually understood, and (4) the chilling effect, interfering with the communication of non-obscene, constitutionally protected speech among adults (even if putatively “harmful to minors”).
This link provides a copy of the text of the Act. The reader is encouraged to study this text before going further.
· In June 1997. the Supreme Court overturns the Communications Decency Act
· In July 1998. Congress proposes a new Internet censorship law based on the “harmful to minors” concept, often used by states with respect to the sale of “adult” books and magazines or videos.
· In October 1998., Congress passes and President Clinton signs the Child Online Protection Act.. It would go into effect Nov.. 20.
· A number of plaintiffs, sponsored by the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF), file suit in the Eastern District of Pennsylvania, claiming that the law is unconstitutional,
· In later October, 1998, I contact EFF about (in behalf of my proprietorship, High Productivity Publishing) about becoming a plaintiff and I am accepted.
Judge Lowell Reed
of the Eastern District of Pennsylvania granted a Temporary Restraining Order
against enforcement of COPA on
The next hearing for a preliminary injunction took place on
According to the ACLU:
constitutional flaws in this law are identical to the flaws that led the
Supreme Court to strike down similar legislation four years ago," said
ACLU attorney Ann Beeson, who argued before the Justices. "Once again, the
law suppresses a wide range of socially valuable speech that adults have a right
In 1997, the Justices unanimously ruled in
In Ashcroft v. ACLU, (No. 00-1293), the ACLU argues that the online protection act targets a wide range of speech on the Internet that is valuable for adults but may be considered "harmful to minors" by some communities, with penalties of up to $150,000 for each day of violation and up to six months in prison. The ACLU's 17 clients include writers of sexual advice columns; Planetout.com; OB/GYN.net; Artnet.com; and websites for bookstores, art galleries, and the Philadelphia Gay News.”
The Supreme Court seemed to be very concerned that, with
obscenity, a publisher “takes a chance” with a de facto national standard on
the Internet and even, arguably, with print (Hamling), so the question then
becomes why couldn’t a “national standard apply to pornography” or to
harmful-to-minors. The ACLU’s simple
answer is that adults don’t have the legal right to access obscenity vut they do have such a right with HTM or non-obscene
pornography. There was a hint that only very few of the plaintiff’s exhibits
would have (according to the government) met the three prongs of the HTM
definition, and apparently the “average person” notion from Miller v. California can be construed to
mean that the value prong is satisfied by a legitimate minority of older minors.
The DOJ appealed again, the Supreme Court accepted the case
again, and oral arguments were heard on the morning of
·The ACLU has set up a control center of materials regarding COPA. The links are http://www.aclu.org/issues/cyber/Ashcroft_v_ACLU_feature.html
The plaintiffs are at http://archive.aclu.org/court/acluvrenoII_plaintiffs.html (doaskdotell.com/content – “High Productivity
Publishing” – my site (
The remaining links are in more or less chronological order.
· Affidavit of doaskdotell.com/content (Dec. 1998)
· Questions by Judge Reed in January 1999
· Questions designed by HPPUB for readers
· Judge Reed’s Opinion supporting his Preliminary Injunction (Feb. 1999)
· Friend of Court brief submitted to Third Circuit by Republican supporters of COPA in July 1999
· Third Circuit Opinion upholding Injunction (June 2000)
· Article by
HPPUB for Spring 2000
· Article by HPPUB for “Bill of Rights 2” booklet
· “Press Release” by HPPUB for Supreme Court appeal
· Petition by Justice Department and argument (May 2001);
· Argument by DOJ, Aug. 2001
· Reply by ACLU, September 2001 (require Adobe Acrobat):
· Center for Democracy and Technology
· Associated Press:
· For the opinion:
·· draft copy at this site (no references) of the 2002 Supreme Court Opinion
·· Text of slip opinion from Supreme Court (in public domain) - Held:COPAs reliance on community standards to identify what material is harmful to minors does not by itself render the statute substantially overbroad for First Amendment purposes. The Court, however, expresses no view as to whether COPA suffers from substantial overbreadth for reasons other than its use of community standards, whether the statute is unconstitutionally vague, or whether the statute survives strict scrutiny. Prudence dictates allowing the Third Circuit to first examine these difficult issues. Because petitioner did not ask to have the preliminary injunction vacated, and because this Court could not do so without addressing matters the Third Circuit has yet to consider, the Government remains enjoined from enforcing COPA absent further action by the lower courts. P. 22.
I have read the Opinion and will consider its arguments carefully. There is discussion of Miller and Hamling and a general notation that Miller provides some reassurance with the "average person" concept. But there is concern over divergence of public opinion of when explicit material (sometimes necessary to make a point) is over the heads of minors and possibly perceived as "prurient" by them.
· ACLU summary of Third Circuit options (issue an opinion or return to District Court for full trial).
· Text of ACLU Brief to Third Circuit (Sept. 2002) in PDF format
New York Times editorial “Protecting Internet Speech”
The Third Circuit listened to oral arguments on
Third Circuit Opinion
· Copy of opinion (public domain) on this site (requires Adobe Acrobat Reader)
ACLU materials on
DOJ appeal of second 3rd Circuit Opinion (Supreme Court accepted
the case on
the oral arguments before the Supreme Court will take place on
3. Here are the latest ACLU links as of March 2004.
· This is a link giving more links to the latest briefs from both sides
· Scott Rosenberg of Salon provides
this account "Don't Worry, Be Sexy" on
· News accounts of the 3/2004 oral arguments::
· News account of the
. Text of Third
Circuit Opinion ACLU v. Mukasey,
· Original strike page by HPPUB for COPA (contains considerable details) (RSAC is described here, but see next item).
· Internet Content Rating Association (ICRA), which is developing a new paradigm for voluntary self-regulation by Internet publishers and parents., somewhat in the spirit of movie ratings. HPPUB is likely to participate soon. See also the CNN news story from Oct. 2001 at http://cnn.com/2001/TECH/industry/10/24/icra.backers.idg/index.html
Recommended additional legal contacts (experience with constitutional litigation) whom I met at the Cato Institute
The Denton Record Chronicle (http://www.dentonrc.com) reports in the
Associated Press that “Feds Seek Google Records in Porn Probe,” in an attempt
by the DOJ to build new arguments defending COPA, that minors
are likely to find material through search engines out of context. The story
http://hosted.ap.org/dynamic/stories/G/GOOGLE_RECORDS?SITE=TXDER&SECTION=HOME&TEMPLATE=DEFAULT Google has refused, but
Federal judge James Ware in
HR 4238 (105th Congress) Omnibus Consolidated and Emergency Appropriations Act (1999) even though passed in 1998, link here., replaced HR 3783, here. See also mention of S 1086 at bottom of page for links.
Many states have “harmful to minors” laws affecting the
Internet. For example, in 1999
followup: Virginia: http://www.mediacoalition.org/legal/psinet/PSIReply%20State%20reply%20in%20VA%20SCt.pdf ; http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=4th/012352r1p.html US Appeals court http://pacer.ca4.uscourts.gov/opinion.pdf/012352R1.P.pdf
From these links, it appears that the Fourth Circuit certified the case to be heard by the Virginia Supreme Court, but expressed great concern that Virginia had not adequately narrowed the meaning of “commercial” (does it just mean direct sale or loan of materials, or publicity leading to advertising or other sales?) It also appears that the Fourth Circuit maintained that the law was unconstitutional literally as written and denied an en banc hearing. I am not able to determine whether the Virginia Supreme Court has heard it yet, let alone ruled, or whether it will (as of 12/2005). If anyone knows, please email me at one at JBoushka@aol.com or see http://www.doaskdotell.com/contact.htm In general, the law presents similar problems to the federal COPA.
Jan. 2008: I have found a 4th Circuit Opinion dated from 2004 that
appears to keep 18.2-391 off the books. The blog entry is here.
The “Virginia Booksellers” case is
also discussed, as is the new PSINet et al and ISP
Association v. Virginia case. Apparently
See also http://www.lorenavedon.com/laws.htm
For more on the
For statement of hppub compliance policy, see adult access policy
A related subtle issue that may crop up in some state laws is solicitation of minors. A few states may have worded their solicitation statues vaguely enough that a site that provides sexual information could conceivably be construed as an indirect solicitation. A site that presents historical personal narratives or speculations might present more of a target for this kind of misinterpretation. In such cases, the appearance of a legitimate motive might provide an affirmative defense. Ironically, the ability of a site to earn money or to have third party support (as opposed support of self-publishing) – commercial in the sense of COPA -- could give a site more legitimacy. This seems like a murky area. A possible downstream issue is the tendency of sites with sexual information to attract (through search engines) inbound spam, even spam offering child pornography. Of course, webmasters who filter their spam would not see it and would not be intending personally to receive it. Webmasters should always have disclaimers to contact them for legal purposes only. There is more discussion at http://www.doaskdotell.com/refer/intelct.htm -- look after the discussion of “child pornography.”
Wilkipeida references on COPA and related laws are at
There is a similar
new bill, S 1086, The Cyber
Safety for Kids Act of 2007, S. 1086, was introduced on
Questions, email me at Jbousha@aol.com