PHILADELPHIA, Feb. 1, 1999—While affirming his desire to see minors protected from sexually explicit material on the Internet, U.S. District Court Judge Lowell A. Reed, Jr., today declared unconstitutional the Child Online Protection Act, the latest attempt by Congress to ban material that is "harmful to minors" from cyberspace.

Reed acknowledged that he would like to have been able to uphold the law. "This Court and many parents and grandparents would like to see the efforts of Congress to protect children from harmful materials on the Internet to ultimately succeed," he said. But he added that he had no doubt he was making the right decision. "Despite the Court's personal regret that this preliminary injunction will delay once again the careful protection of our children, I without hesitation acknowledge the duty imposed on the Court and the greater good such duty serves. Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," he concluded.

The American Booksellers Foundation for Free Expression, A Different Light Bookstores and Powell's Books joined 14 other plaintiffs in challenging COPA because it threatens companies that do business on the World Wide Web with heavy criminal and civil penalties for displaying material that is harmful to minors in any place where a minor might see it. During a six day hearing that concluded last week, lawyers for the American Civil Liberties Union, who represented the plaintiffs, argued that COPA would force companies to remove from their websites material with sexual content that has serious literary, artistic, political and scientific value: the editor in chief of CNET, a web news service, said that he would not have posted the Starr Report if COPA had been in effect at the time.

Justice Department lawyers argued that the plaintiffs' fears were exaggerated. They claimed that the law applied only to companies whose main activity was distributing pornography.

In his 49-page opinion, Reed agreed with the plaintiffs about the scope of the law. "There is nothing in the text of COPA….that limits its applicability to so-called commercial pornographers only; indeed, the text of COPA imposes liability on a speaker who knowingly makes any communication for commercial purposes ‘that includes any material that is harmful to minors,'" Reed said.

Reed also rejected the Justice Department's claim that commercial sites with small amounts of sexually explicit material could easily comply with COPA by limiting access to those who can prove that they are adults. The plaintiffs provided extensive evidence that the use of credit cards or other forms of age verification would deter visits to their sites by people who wish to protect their anonymity. The decline in visitors, in turn, would lead to a loss of advertising, currently the main source of income for most web sites. Large sites like CNET say they would be forced to censor "harmful" material while small sites like the Sexual Health Network, another plaintiff, might be put out of business.

Reed questioned whether COPA could accomplish its purpose of protecting children. The court was told that even if all "harmful" material was suppressed on web sites operated by American companies, sexually explicit material would still be available on foreign web sites and on non-commercial sites. Reed said that software programs that parents can install on their computers to block sexually explicit material may well be more effective than COPA. "The record before the Court reveals that blocking or filtering technology may be at least as successful as COPA would be in restricting material online without imposing the burden on constitutionally protected speech," he said.

Proponents of COPA said the law was needed to outlaw the free, sexually-explicit "teasers" that commercial pornographers use to attract traffic to their web sites. But Reed noted that COPA applied to words as well as to pictures.

The judge also criticized the heavy penalties in the law, which included up to six months in jail and $50,000 in fines as well as civil penalties of up to $50,000 for each day a violation exists. "….[P]erhaps the goals of Congress could be served without the imposition of possibly excessive and serious criminal penalties, including imprisonment and hefty fines, for communicating speech that is protectetd as to adults," he said.

Reed issued a preliminary injunction blocking the enforcement of COPA. There is a possibility that the Justice Department will seek a hearing before Reed on the question of whether he should issue a permanent injunction. However, legal observers believe that the government will conclude that Reed is unlikely to change his mind and appeal his decision to the U.S. Court of Appeals. The government has 60 days to decide.

Previously in ABFFE UPDATE