For the second time in three years, ACLU lawyers were in court in Philadelphia this week to challenge a federal law that would censor non-obscene material on the Internet. The American Booksellers Foundation for Free Expression was a plaintiff in the first case, the challenge to the Communications Decency Act, which led to an important victory for First Amendment rights in 1997. In the current fight against the Child Online Protection Act, which became law last year, ABFFE is joined by Powell's Books, A Different Light Bookstores and 14 other plaintiffs.

There are differences between CDA and COPA. The CDA banned the display of any "indecent" material on the World Wide Web as well as the transmission of indecent material in E-mail and the posting of indecent material on Usenet and other parts of the Internet. COPA bans the display of material that is "harmful to minors" and applies only to commercial sites on "the web."

Nevertheless, COPA suffers from the same constitutional infirmity that led the Supreme Court to strike down CDA: it effectively bans the display of First Amendment-protected material with sexual content on the most rapidly growing part of the Internet. For booksellers, it means that excerpts from books that are "harmful to minors" would have to be placed in a special section of their web sites to prevent minors from accessing them. It is even possible that a listing of titles that included offensive words might have to be hidden from sight.

In his testimony at a preliminary hearing in the case in November, Norman Laurila, the president of A Different Light Bookstores, a member of the ABFFE board and the treasurer of the American Booksellers Association, testified that the law is particularly threatening to a gay and lesbian bookstore whose entire inventory if considered "harmful to minors" by many people.

Following the November hearing, U.S. District Court Judge Lowell A. Reed, Jr., issued a temporary restraining order to prevent COPA from going into effect. The hearing that opened here today will determine whether the restraining order will be extended by the issuance of a preliminary injunction. Judge Reed has promised a decision by February 1. Whatever the outcome, the case will probably be appealed to the U.S. Court of Appeals and finally end up before the Supreme Court.

Ann Beeson and Chris Hansen, the lead ACLU attorneys, got their case off to a strong start Wednesday by presenting two impressive witnesses, Donna Hoffman, Associate Professor of Management in the Marketing Division at Vanderbilt University's Owen Graduate School of Management, and Lawrence J. Magid, syndicated columnist and author who writes about computers and the Internet.

Hoffman testified that COPA could affect a large number of the sites on the World Wide Web. Approximately one million of the 3.5 million sites on the web are operated by businesses, including those operated by bookstores, on-line magazines and news organizations that display material with sexual content (like the Starr report!) along with a wide variety of material without sexual content. (Sites that specialize in sexually explicit material would not be affected by the new law because they require the use of a credit card and are not accessible to minors.)

Hoffman said that COPA's requirement that "harmful" material be removed from display hidden behind barriers could be the death knell of many of these web businesses. While it would be legal to give access to the material to someone showing a credit card or some other form of proof that he or she is an adult, history has shown that web users are very reluctant to provide personal information about themselves in return for access to web material because they fear that they will lose their privacy.

Consequently, the creation of barriers will lead to a drop in traffic, which in turn will cause a loss of advertising on the site, which is one of the few ways that web providers have found to make money.

The second witness Wednesday told the court that children could be protected without requiring web sites to segregate "harmful" material. Lawrence Magid, who has written extensively about protecting minors on the Internet, said that the filtering technology that is available today can prevent minors from getting access to the "vast majority" of sexually explicit material on the web. They can use filtering software on their own computer or choose an Internet service provider that offers safeguards for minors. America Online allows parents to choose three levels of security, depending on the age of the minor, he said.

On Thursday, ACLU presented three more strong witnesses. Web operators of all sizes, from an owner/operator who runs his business out of his home, to CNET, a news service that employs 500 people, they testified that they could not comply with the provisions of the new law without either censoring large amounts of material on their sites or going out of business.

The first witness was Christopher Barr, the editor in chief of CNET and the co-chair of the Internet Content Coalition, a plaintiff whose members include the New York Times, Time, Inc., MSNBC and ZDNet. Barr gave several examples of things that had appeared on CNET that might be "harmful to minors": an interview with a computer game developer who discussed the use of sex in games; a story about women and on-line chat rooms, a link to Playboy’s web site that appeared in a story that had no other sexual content, and a story about the Starr report.

Barr’s testimony lasted for only a half hour. A lawyer for the Justice Department spent the next hour and a half trying to show that Barr’s fears were exaggerated. Significantly, however, he dealt with every one of the examples except the Starr report.

Apparently anticipating this response to Barr’s testimony, the ACLU next presented Mitchell Tepper, the founder of the Sexual Health Network and the operator of Sexualhealth.com. Testifying from a wheelchair, Tepper said that his business provides sexual information to people who have sexual problems as a result of paralysis or some other disability. As a result, his website is almost wholly devoted to sexually explicit material, including an advice column that provides step by step directions for engaging in intercourse, oral sex and other forms of sexual conduct.

The government attempted to counter Tepper by asserting that none of the material on his site could be found to appeal to prurient interest and therefore could not be "harmful."

Having explored the problems of a large site with a small amount of sexual material and a small site with a large amount of sexual material that might not be prurient, the ACLU then presented the government with its hardest case–a large site with a lot of sexual material, much of which might be considered prurient, at least in some parts of the country.

Thomas P. Reilly, founder and Chairman, PlanetOut Corporation, a website for the gay, lesbian, bi and transgender community, said he had launched his website primarily as a means of reaching out to gay people who are "closeted" or otherwise isolated throughout the country. Reilly said that when he was in high school he had attempted suicide four times because there was no one to help him accept his sexuality.

PlanetOut has been very successful since it was established in 1995. Reilly estimates that more than 2 million people have visited the site over the last three years. Over 175,000 people have registered on the site, but Reilly estimates that its regular audience is at least twice as large.

Reilly said that it is inevitable in a community that is defined by its sexuality that a large number of the 100,000 pages on the site concern sex in some form. There are bulletin boards where people can discuss sex by posting comments. There are also 40 chat rooms where they can do the same thing live. In fact the only places on the site that don’t deal with sex are sections devoted to personal finance and travel (and even the travel section contains the names and addresses of gay bars in foreign countries.)

The government appeared to concede Reilly’s claim that in a country where many people equate homosexuality and pedophilia it is inevitable that somebody will one day attack PlanetOut as "harmful to minors." (The site receives "several dozen" complaints every week, Reilly said.) It argued that PlanetOut should take advantage of the affirmative defenses in COPA and screen its site from anyone who cannot prove that he or she is not an adult.

Reilly said blocking access to PlanetOut would kill the site. The fact that so many people visit PlanetOut anonymously reflects the fear of many that their homosexuality will be publicly exposed, perhaps causing them to lose their jobs and homes. (Only 10 states protect the civil rights of gays and lesbians, Reilly said.) People who are afraid of having their sexual identity revealed are not going to visit a web site that requires them to identify themselves for the purpose of establishing their age. The only gay web site to try requiring personal information was never able to attract more than 10,000 members and nearly went out of business before changing its policy, Reilly said.

The government was at great pains today to assert that blocking access to potentially harmful material was not as burdensome as the critics of COPA contend. After all, it is not necessary to block all the material on a site: a screen can be erected just around the harmful material. How hard would it be to block one page, one of the Justice Department lawyers asked. Pretty hard if that one page is the most popular page on the site, Barr said.

The final witness today, Dan Farmer, the director of security for Mindscape, an Internet service provider, raised questions about the workability of any age verification system based on credit cards or any other form of identification that is available today.

The government is expected to present three witnesses of its own beginning tomorrow, extending the hearing into next week. Although the government has reserved the right to ask for a full trial before Judge Lowell A. Reed, the length of the proceeding suggests that the judge will make up his mind on the evidence presented in this hearing. If he issues the preliminary injunction, the government will probably waive a trial and appeal directly to the U.S. Court of Appeals. Judge Lowell has promised a decision by Feb. 1.

Previously in ABFFE UPDATE