The Child On-Line Protection Act of 1998. (Text of Act)

  1. UPDATE. Judge Reed of the Eastern District of Pennsylvania granted a Temporary Restraining Order against enforcement of COPA on November 19, 1998. On November 25, 1998 the Department of Justice agreed to honor the order until February 2, 1999. The next hearing for a preliminary injunction took place on January 20, 1999. On Wednesday 1/26/1999 Judge Reed asked the attorneys 19 questions (note web references below); the most disturbing of these was this: if a law is "overbroad" and clearly burdens free speech among adults but is still the least restrictive means available to achieve a relatively narrow compelling state interest [shielding minors from pornography], can it be constitutional?) Further questions are suggested by HPPUB at COPAquestions.  For a database schematic of the arguments view http://www.doaskdotell.com/content/hpinfo/topics.htm and http://www.doaskdotell.com/content/hpinfo/b31/b31.htm.

 

UPDATE - On Feb. 1, Judge Reed issued a Preliminary Injunction banning enforcement of COPA. HPPUB will update this and related with more details as soon as possible.

The opinion is available here (p.d.). Note Judge Reed's opening comments about "who owns the press."

On April 2, 1999 the Department of Justice appealed Judge Reed's order to the 3rd Circuit. However, the order remains in effect until the appeals court rules, which may not happen until the fall of 1999. The losing party may then appeal to the Supreme Court. To the best of our knowledge, a full trial at the district court level now appears unlikely, but we will keep you updated.

On November 4, 1999, the Third Circuit heard oral arguments from both sides. Circuit judge Leonard Garth asked the government tough questions about the "severe standards" implied by the HTM definition in COPA, and suggested that the use of "community standards" or overbreadth could invoke religious-based censorship that could occur in Iran or Iraq. Judge McKee asked whether the mandatory adult identification would violate the right to privacy, such as a gay person (possibly in the military) not yet “out” who does not want to identify himself to a “gay” web site. 

On May 22, 2000 the Supreme Court struck down a “child protection” feature of the Telecommunications Act of 1996, related to cable television operators. This may set an important precedent for COPA. See chronology at this site (near end of file). 

In July, 1999 five Republican members of Congress submitted an amicus brief to the Third Circuit urging that the law be upheld and that the injunction be overturned. The text of the brief is included here: find its flaws makes a good exercise in critical thinking.

Similar state HTM laws have been invalidated by a federal judge in Michigan and the Tenth Circuit in New Mexico. See chronology.

UPDATE: June 26, 2000: Third Circuit Upholds Preliminary Injunction.

Reference: http://pacer.ca3.uscourts.gov/recentop/day/991324.txt

Or http://www.doaskdotell.com/content/copaapel.htm

On May 21, 2001 the ACLU announced that the Supreme Court will hear an appeal (I believe by the government) to the 3rd Circuit Decision. The case is now known as ACLU v. Ashcroft No. 00-1293.  The ACLU version of this news story is http://www.aclu.org/news/2001/n052101a.html

The Electronic Frontier Foundation account is at

http://www.eff.org/Legal/Cases/ACLU_v_Reno_II/

The actual PETITION FOR A WRIT OF CERTIORARI  is at http://supreme.nytimes.findlaw.com/briefs/00-1293/2000-1293.pet.aa.html

As noted elsewhere in the references below, I believe that this particular issue is very easy to interpret in different ways depending on how one understands the First Amendment in the context of modern technology and also notions of “general welfare.”

The ACLU filed its brief on September 20, 2001.  It , along with supporting materials, may be references from

http://www.aclu.org/news/2001/n092001d.html

From EFF, 10/05/2001: The US Supreme Court has set a date and time, November 28, 2001, 10am
   ET, for oral argument in the ACLU, EFF, et al., legal challenge to the    Child Online Protection Act (COPA, or "CDA-2"). The case is officially    known as ACLU v. Ashcroft (formerly ACLU v. Reno II). This hearing was
   originally not expected until early 2002.  Some legal observers believe that the Supreme Court may be primarily concerned that the “topology” argument offered by the Third Circuit could undermine even obscenity (as opposed to HTM) laws as they apply to the Internet.

   Plaintiffs' brief in the case, submitted September 20, 2001, claims    the statute is unconstitutional under the First Amendment. The brief    is available online at:      http://www.aclu.org/court/ashcroft3.pdf

   Six powerfully written amici curiae briefs filed in support of    plaintiffs by a wide range of organizations, from the US Chamber of    Commerce to Volunteer Lawyers for the Arts, are now becoming available
   from links at bottom of the ACLU press release at:      http://www.aclu.org/news/2001/n092001d.html

The Supreme Court recommends the following repositories for the briefs: 

Petitioner (the government): http://supreme.lp.findlaw.com/supreme_court/briefs/00-1293/2000-1293.pet.aa.html

http://supreme.lp.findlaw.com/supreme_court/briefs/00-1293/2000-1293.pet.rep.html

http://supreme.lp.findlaw.com/supreme_court/briefs/00-1293/2000-1293.mer.aa.html

Or at http://www.doaskdotell.com/content/copapeti.htm  http://www.doaskdotell.com/content/copapet2.htm http://www.doaskdotell.com/content/copapet3.htm

As a general rule, the government contends that adult verifications schemes would not unduly burden adult access to First-Amendment-protected HTM speech, and that commercial operators owe some public diligence..  Of course this optimistic view of adult screening can be challenged (as below).  The government also questions the Appeals Court on the discussion of uniform community standards, claiming that “serious merit” is not as subject to geographical variation. There is some suggestion that HTM is really aimed at pornography but this is not completely clear to me, at least, in the brief. 

Respondent (ACLU): http://supreme.lp.findlaw.com/supreme_court/briefs/00-1293/00-1293.pet.resp.pdf

A summary of how the session went with the oral arguments is available at:

http://www.cnn.com/2001/LAW/11/28/scotus.onlineporn.ap/index.html

http://www.cnn.com/2001/LAW/11/29/scotus.internet.porn/index.html

or  (for Associated Press story)

http://abcnews.go.com/wire/SciTech/ap20011128_411.html

The AC:LU’s link:

http://www.aclu.org/issues/cyber/Ashcroft_v_ACLU_feature.html

“ONCE AGAIN, ACLU BATTLES INTERNET CENSORSHIP
BEFORE UNITED STATES SUPREME COURT

In oral arguments yesterday, the American Civil Liberties Union returned to the United States Supreme Court to urge the Justices to once again reject a law criminalizing constitutionally protected speech on the Internet.

"The 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 to communicate."

In 1997, the Justices unanimously ruled in Reno v. ACLU that the Communications Decency Act was an unconstitutional restriction on free speech. Congress responded to that ruling by adopting the "Child Online Protection Act" in 1998.

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.”

In general, it appears that most of the discussion concerned the “nationwide community standards” concept for the definition of harmful to minors and of “serious value to minors.”

  1. My own affidavit is now available. Also, a recent statement by me (a “press release”) from Independent Gay Forum (the discussion boards) is available.

            In my DADT book and elsewhere on this site, I discuss the Communications Decency Act of 1996, which sought to ban the posting of "indecent" (as opposed to "obscene") materials online. The Supreme Court declared this law unconstitutional in 1997.

            On October 21, 1998, President Clinton signed into law the Child Online Protection Act of 1998 (the "Son of CDA" law), which was a rider on an appropriations bill. Without an injunction from a court or decision from the Justice Deparment, the law could be enforced as early as November 20, 1998 (now February 2, 1999).

            This law replaces the "indecency" concept with the obscure "harmful to minors" notion. The law specifically prohibits the display of "htm" materials on any area of the Internet accessible to children (persons under 17) but specifically limits the law to commercial providers. The law adds an affirmative defense, to require of credit card validation or similar adult validation technology to "adult" materials. It also eliminated liability or susceptibility from Internet service providers in most cases (although there are troubling questions when providers "solicit" business). It was this restructuring which some persons in Congress thought would make the bill acceptable.

            "Harmful to minors" is defined as any material (sound, picture, or text) which has all of the following characteristics: (1) It panders to the prurient interest from the perspective of a minor (2) It depicts, describes or represents sexual or excretory organs and acts in a patently offensive material, viewed from the like perspective of a minor (3) It contains no reasonable social or educational value to minors (4) The first three items are determined according to "community standards" from an average person in any community.

            On October 22, 1998, a coalition of plaintiffs filed, in the Eastern District of Pennsylvania, a lawsuit to challenge the constitutionality of this law. HPPUB is included in this complaint under Electronic Frontier Foundation. The largest plaintiff, the ACLU, has posted this complaint in an easily accessible link on its main site. Hppub appears in paragraph 132.

            There are many obvious flaws in COLPA. These would include (1) that all minors, regardless of age, are viewed in the same light (2) that "harmful to minors" is a subjective concept that may vary enormously with the political, religious, and social views of the "average" beholder (3) that the law may have a chilling effect and may effect prior restraint (4) that cost effective adult verification technology would interfere with the availability of free educational materials for very small providers (5) that anonymous customers could not view adult materials (6) "community standards" do not make sense for the Internet or would give the most "conservative" community a heckler's veto on speech for the entire world! (7) A prosecutor can sue for a civil judgment and effectively secure a $50,000 per day fine with a lower standard of proof ("preponderance of the evidence" v. "beyond a reasonable doubt" ¾ remember OJ) that a particular site has materials that are "harmful to minors." A government "civil suit" that is legally unfounded can still be very expensive for a content-provider to defend. The "harmful to minors" concept certainly sounds constitutionally "overbroad."

There is controversy over whether COLPA effectively censors subject matter or just the objectionable presentation of certain subjects. Possibly, the provision regarding explicitly depiction of sexual or excretory acts and organs implies, by negation, that subject matter alone would not make an on-line file HTM. We are not sure.

Another controversy involves the limitation of COLPA (or "COPA") to commercial providers, presumably those using the same Internet site to sell goods or services. The following argument can be made: even though parents may have some effective screening tools to protect their children on the Internet, content providers with commercial intent have a pro-active responsibility to protect children from the most "harmful" materials regardless of whether parents use the screening devices or not. Commerce, will intersecting strongly with free speech, is presumably more than speech between non-commercial individuals. On the other hand, parents, when they buy anything of value for themselves, whether guns, prescription drugs, lawn mowers, or internet service, ought to be expected to take the initiative to take reasonable precautions, recommended by commercial interests in good faith, to protect their own children. Parents, when setting up accounts for their children, may indeed choose between several options provided by the internet provider community: (1) products that screen for adult content (Netnanny), (2) services which (using Metatags which browsers now can analyze) screen for content provider self-rating (RSAC, Safesurf) according to PICS, the Platform for Internet Content Selection [see the following description: this assumes providers reliably self-rate and that parents have some skill, although parents can actually block out all unrated sites, too] and (3) (most important and most effective of all) service providers (AOL, ATT) which offer kids' accounts than can access only a predefined list of web sites.

            Where does this leave HPPUB? Even though Congress may have intended mainly to shut down the uncontrolled display of "pornographic" pictures of sexual acts, the letter of the law, and how it might affect social and political discussion, needs to be taken seriously. Some serious social and political issues, especially those connected to sexuality, cannot be properly analyzed without presenting adult concepts and referring, at least sometimes, to sexual practices. Furthermore, content of an intensely psychological nature, taken as a whole, may be suitable for adults and older or mature teens (those brought up around well-educated adults) whereas younger children or immature teens may lack the intellectual skills to understand hypothetical argument and they may perceive some materials in a way not intended by the author. The problem-solving and apperception skills required to understand many materials on this page do require some background in English, humanities, sciences, and particularly logic and mathematics ¾ the mental discipline one gets from proving theorems in geometry! Playing chess helps, too! So the subject matter question is of great concern.

Here is a disturbing question: would a law banning open display (available to minors) or specific subject matters, be constitutional? What if the subject matter were homosexuality, as motivated by the "don't ask, don't tell" mentality and buttressed by the observation that federal law, already set up for the military, regards homosexual orientation and probable future acts as equivalent? I hope that the fact that free speech gets strict scrutiny ¾ could the government have a compelling interest in keeping "waverers" among minors from learning about homosexuality or from seeing it portrayed positively? I hope not, but I'm concerned. Equal protection arguments probably would not suffice. Anyway, I can imagine the arguments ¾ theaters don't admit young children without adults to R and even PG-13 movies? On the other hand, service providers nearly always make adult-content screening devices available. Some providers will even give the parent the ability to limit a child-account's access to a list of already pre-approved web sites. If so, why should the freedom of other adults be compromised when some parents do not carry out their own responsibilities?

            The policy for HPPUB with regard to protecting minors who may discover this site, is as follows (numbering of this document's sections is continuous from beginning):

  1. Grossly indecent or detail discussions of sexual or excretory acts are not presented
  2. Similarly, violent or otherwise harmful materials on destructive behaviors, such as how to make weapons or how to abuse drugs, is not presented in detail.
  3. "Hate" speech or slurs are not permitted
  4. Adult subject matter is discussed in a respectful manner.

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