Pa. Judge Strikes Down Child Online Protection Act
A federal judge again struck down a 1998 online-porn law, the latest chapter in a judicial saga that includes trips to the Supreme Court. The U.S. may appeal again, said sources close to the case. U.S. Dist. Judge Lowell Reed, Philadelphia, permanently enjoined enforcement of the Child Online Protection Act (COPA) Thurs. for vagueness and excessive reach. The ruling drew praise from Internet privacy groups that took the occasion to criticize the federal govt. for trying to enforce a law they call unenforceable.
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Reed found all of COPA unconstitutional in ACLU v. Gonzales, after 2 injunctions he issued the past 9 years were largely affirmed. He said he did so, “notwithstanding the compelling interest of Congress in protecting children from sexually explicit material on the Web,” because COPA violates the First and Fifth Amendments. The case was suitable for court consideration because at least one of the plaintiffs legitimately could be tried under COPA, Reed ruled. The law isn’t “narrowly tailored to Congress’ compelling interest” and the law is “impermissibly vague and overbroad,” he said.
Education beats a ban, said John Morris of the Center for Democracy & Technology. “You can outlaw pools all you want, but the best way to keep a kid from drowning is to teach him how to swim,” he said. Stressing the importance of protecting children from access to adult material, Morris said the govt. should focus on education and improved technology. U.S. law has no power over the international content that comprises over 50% of adult material online, but filtering technology is effective no matter the source, he said.
“This decision perpetuates the unbroken chain of Internet censorship cases the government has lost since 1996,” said Adam Thierer of the Progress & Freedom Foundation. Despite “almost no wins to show for all their litigation,” the govt. obsessively appeals, he said, calling the pattern “stunning… One wonders [whether] if all the money spent litigating this case had instead been spent online literacy and media education efforts, it might have produced more concrete results. We could be looking at an unprecedented 3rd trip to the Supreme Court.”
Not all activists endorsed the ruling. Morality in Media Pres. Robert Peters rejected the idea that parents can guard children from porn simply by making smart choices. “While this may come as a surprise to some… judges, many parents are overburdened and tired… naive,” he said: “Many don’t want to be overly strict, like their parents were. Many are technologically challenged… Many don’t speak English. Many have physical or mental health problems. Some neglect and abuse their own children.” Adult sites, like brick & mortar smut shops, should have to keep out children under all circumstances, Peters said.
The decision is just the latest episode in a long series of litigation. In 1998, Judge Reed issued a temporary restraining order and then a 1999 temporary injunction against COPA enforcement. That was upheld in 2000 by the 3rd U.S. Appeals Court, Philadelphia. But it used reasoning different from Reed’s and the plaintiffs, the Supreme Court ruled, kicking the case back to the appeals court in DoJ’s sole COPA victory. In 2003 the 3rd Circuit adopted Reed’s reasoning. DoJ appealed. The Supreme Court upheld the preliminary injunction but said Reed hold a full trial on its merits. COPA’s predecessor, the Communications Decency Act of 1996, had been defeated in court by Morris, then American Civil Liberties Union (ACLU) lead counsel.
Criminal laws on obscenity and child porn already exist, said Aden Fine, an ACLU litigator in the case. “If anyone is violating these laws, the government can and should prosecute them,” he said. The latest ruling makes clear that overzealous attempts to regulate lawful speech on the Internet -- simply because some find it unsuitable for children -- won’t stand up in court, he said.