WASHINGTON, D.C. -- The Supreme Court this week held the final hearing on whether a law meant to keep lewd online materials away from children violates the First Amendment.
The Child Online Protection Act, passed by Congress in October 1998, was created to narrow ambiguities of the Communication Decency Act, which was quickly struck down in 1997. COPA aims to keep "harmful" and "obscene" online material away from children 13 and under, and to penalize those parties who deliver such material. Penalties could fall under both civil and criminal sanctions and include imprisonment of six months and fines of up to $50,000.
COPA has never been enforced because of a legal battle that began just days after it was signed into law. Privacy advocacy group the Electronic Frontier Foundation, the American Civil Liberties Union, and the Electronic Privacy Information Center filed suit, claiming the law violates free speech. Since then a string of injunctions has kept the law from being enacted.
Two lower courts struck the law down; the Supreme Court heard the case in 2002, and sent it back to the lower courts. The case, which is known as Ashcroft v. ACLU, made its way back to the Supreme Court this week, and the Court is expected to deliver a decision in June.
Taking Sides
At this week's hearing, attorneys for the Justice Department and the ACLU argued for and against a reinstatement of the law, and were questioned by the Supreme Court justices.
One problem with COPA is that the law's language is not narrow enough, argued Ann Beeson, an attorney for the ACLU, one group arguing against COPA's enforcement.
Sex columnists such as Salon's Susie Bright could find themselves in trouble under the law for discussing sex, Beeson said. Adults have a right to speak openly about sex, Beeson argued, saying COPA encroaches on free-speech rights for purveyors of legitimate sex-related material.
Justice Stephen Breyer noted, however, that Congress "is not interested in Susie Bright."
Under COPA, adults who wish to view material deemed unsuitable for minors would first have to provide a credit card. Beeson argued that making adults identify themselves before viewing material is a problem, saying, "If you have to give up your anonymity, a lot of people are going to be deterred.... [There is] a stigma of being associated with material the government has declared illegal."
She rejected the comparison of an ID policy at movie theaters by saying that, under the COPA guidelines, a credit card is not just an ID but the only means of accessing material. She also pointed out that people are not inclined to give out credit card numbers online unless they're shopping.
Justice Ruth Bader Ginsburg agreed, saying adults might be hesitant to disclose information and thus less likely to patronize a site.
The Justice Department's Solicitor General, Theodore Olson, arguing on behalf of COPA, said Congress did not frame the law to punish sex columnists or sex education Web sites. Olson said that COPA was intended to target people in the pornography business who knowingly violate the law and refuse to take steps to protect minors from potentially harmful content.
COPA Alternatives?
COPA opponents noted that there are other options for blocking potentially harmful information on the Web. Beeson pointed to filters, noting that COPA was passed before certain technologies, such as some of the filters available now, were in effect.
Olson argued that blocking material in the home requires the consumer to buy equipment, and that it's easy to avoid filters. He also discussed how he had searched for "free porn" and had gotten more than 1 million hits, proof that the Internet porn industry needs to be kept from damaging children. Olson added that he did another search on how to disable Internet filters and received detailed instructions about how to take apart the computer to allow unfettered surfing. Filters, Olson concluded, are not the solution.
Justice Breyer agreed, comparing COPA's demand for adult identification to zoning in libraries.
Self-Censorship
Another potential drawback to COPA, Beeson said, is the potential for writers to start censoring their own work. If authors or creators believe their sites will fall under COPA's requirement for credit card identification, they'll be more inclined to edit their work, Beeson said.
But printed magazines wanting to appear in a general magazine section rather than behind blinders, said Justice Antonin Scalia, have to self-censor as well.
"This is a wholly unprecedented medium," Beeson said, adding that the record has showed that setting up barriers destroys the nature of accessing information on the Internet.
Ad Choices