US court throws out Child Online Protection Act, 1998

US law to protect kids from internet porn struck down by federal judge, calls it violation of First amendment.

BY A CORRESPONDENT

March 24, 2007: United States Congress has taken yet another beating in its efforts to protect children from sexually explicit content on the internet, following a federal judge striking down the Child Online Protection Act, 1998.

The federal law makes it a crime for commercial website operators to allow children access to “harmful” material.

Senior US District Judge Lowell Reed Jr said he was forced to conclude that the federal law violates the First Amendment. At the same time, he said he was not happy with his conclusion.

Judge Reed said in his judgment on March 22, 2007: “Despite my personal regret at having to set aside yet another attempt to protect our children from harmful material, I also recognise that judges have a duty at times to make decisions they do not like.”

Judge Reed said that allowing the Child Online Protection Act (COPA) to take effect would actually do more harm to children in the long run. Explained he:

“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,"

The federal law was intended to criminalise websites that allow children to access material deemed “harmful to minors” by “contemporary community standards.”

Judge Reed said he did sympathise with Congress, but was forced to conclude that the law is unconstitutional because it would have a chilling effect on speech.

He went on: “I agree with Congress that its goal of protecting children from sexually explicit materials on the Web deemed harmful to them is especially crucial. This court, along with a broad spectrum of the population across the country, yearn for a solution which would protect children from such material with 100 percent effectiveness.”

At the same time, Judge Reed said, he was also “acutely aware” of his duty to uphold the First Amendment.

The judge said he recognises that the filtering software programmes available to parents “are neither a panacea nor necessarily found to be the ultimate solution to the problem at hand.” But when compared with COPA, he said, the filtering software is a more effective solution for the problem.

One significant limitation of COPA, Judge Reed observed, is that it does not reach beyond the United States to cover foreign websites with sexually explicit material.

By contrast, Reed said, filters have no such limitation and can block sexually explicit foreign material on the Web.

Another flaw that the judge found in COPA is that it is “over-inclusive” since it “applies to speech that is obscene as to all minors from newborns to age 16, and not just to speech that is obscene as to older minors.”

The law that was struck down by Judge Reed had made it mandatory to obtain a credit card number or other proof of age. Penalties for violations included a $50,000 fine and up to six months’ imprisonment.

Those who challenged the law included sexual health sites, the online magazine Salon.com and other websites, with the support of the American Civil Liberties Union (ACLU).

The United States Supreme Court had, in 2004, upheld a temporary injunction that Judge Reed issued early in the case. The injunction blocked the law from ever taking effect, but the lawyers of the US Justice Department pressed on with the case.

Expert witnesses called by the Justice Department testified that filtering software is burdensome and ineffective.

However, experts called by the ACLU argued that parents now have more serious concerns than pornographic websites, like, for example, the threat of online predators. Parents, they averred, are more worried about their children using social-networking sites such as MySpace than pornographic websites.

ACLU executive director Anthony D Romero praised the federal judge’s ruling as a victory for free speech on the internet. “After nearly a decade of legal proceedings,” he added, “the First Amendment has emerged victorious from the government’s illegal attempt at online censorship.”