Continued Battle Over Internet Censorship

ACLU Files Brief in Second Supreme Court Battle 
Over Internet Censorship

ACLU Special Feature: Ashcroft v. ACLU  

FOR IMMEDIATE RELEASE
Thursday, September 20, 2001 

WASHINGTON, DC -- In a legal brief filed today, the American Civil Liberties Union asked the Supreme Court to reject Congress' second attempt to censor free speech on the Internet, saying that flaws in the law are identical to the problems that led all nine Justices to void a similar law in a landmark 1997 ruling. 

"The government's only argument is that this law should be upheld because it is not quite as censorious as the law that the Supreme Court struck down in 1997," said Ann Beeson, lead counsel in ACLU v. Ashcroft, No. 00-1293. "But a law banning books does not become constitutional because it is re-written to remove only every other book on the shelves. " 

The Child Online Protection Act ("COPA") imposes severe criminal and civil penalties on speech on the World Wide Web that is 'harmful to minors" according to "contemporary community standards." 

Like the doomed 1997 censorship law, COPA targets a wide range of speech on the Web that is valuable for adults but may be considered harmful to minors by some communities. Some examples from the plaintiffs' web sites are: 

• ArtNet, a leading online vendor of fine art, displays photographs from Andres Serrano's series "A History of Sex" on its Web site.   
• The Sexual Health Network provides information to disabled persons about how they can experience sexual pleasure.   
• A Different Light Bookstore's site contains an article describing a gay author's first experience of masturbation.   
• Salon Magazine includes a column by sexpert Susie Bright that describes her sexual experiences. 

The new censorship law, which imposes penalties of up to $150,000 for each day of violation and up to six months in prison, was first blocked in February 1999 by a federal court in Philadelphia. That court held that the law was invalid because there is no way for Web speakers to prevent minors from harmful material without burdening adults from access to speech protected by the First Amendment. 

The Third Circuit Court of Appeals affirmed this finding in June 2000, saying that COPA was unconstitutional for an additional reason. "Because of the peculiar geography-free nature of cyberspace, [COPA's] community standards test would essentially require every web communication to abide by the most restrictive community's standards," wrote the circuit court. 

To date, the ACLU has successfully challenged several state "harmful-to-minors" laws applied to the Internet, including those in New York, New Mexico, Michigan, and Virginia.

"Not one federal judge in the country has upheld these laws when applied to the Internet," said Chris Hansen, an ACLU senior staff attorney and member of the legal team. "Lawmakers should stop passing criminal laws for the Internet and focus instead on educating users to make their own choices about what content to view or avoid." The Court is expected to schedule an argument date for early 2002. 

Six friend-of-the-court briefs are being filed today urging the Court to protect free speech on the Web. The groups that filed the briefs are: the Chamber of Commerce of the United States; the Society for the Scientific Study of Sexuality and other sex research groups; Volunteer Lawyers for the Arts and People for the American Way; a group of mainstream publishers and booksellers; the American Society of Journalists and Authors; and Association of National Advertisers, Inc. 

The brief submitted by the American Society of Journalists and Authors was filed on a CD-ROM which contains links to a variety of valuable sites that could be at risk for criminal prosecution under the law. 

The 17 plaintiffs represented in Ashcroft v. ACLU are: the American Civil Liberties Union (on behalf of all its members, including ACLU President Nadine Strossen, the poet Lawrence Ferlinghetti, Patricia Nell Warren, Mitchell Tepper and David Bunnell); A Different Light Bookstore; American Booksellers Foundation for Free statement; ArtNet; The Blackstripe; Condomania; Electronic Frontier Foundation (on behalf of all its members, including Bill Boushka, Jon Noring, Open Enterprises Cooperative and Rufus Griscom); Electronic Privacy Information Center; Free Speech Media, LLC; Internet Content Coalition; OBGYN.NET; Philadelphia Gay News; PlanetOut Corporation; Powell's Bookstore; RIOTGRRL; Salon Magazine; and Weststock.com. (More information on these plaintiffs and links to these websites can be found here.)

ACLU attorneys in the case are Ann Beeson, Christopher Hansen and Steven R. Shapiro of the national office and Stefan Presser, Legal Director of the ACLU of Pennsylvania. Alexandra A.E. Shapiro, Christopher R. Harris, Michele M. Pyle, and Mark Goldberg, attorneys from the law firm Latham & Watkins in New York City; David Sobel of Electronic Privacy Information Center, and Lee Tien of Electronic Frontier Foundation are co-counsel. 

The ACLU's brief can be found here.

Brief by members of the Internet industry is available at: http://www.cdt.org/speech/copa/010920brief.pdf.

Brief by Volunteer Lawyers for the Arts and People For the American Way can be found at: http://www.pfaw.org/issues/expression/VLA_amicus_brief.pdf.

Brief by the National Coalition Against Censorship is at: http://www.ncac.org/issues/ashcroft.html.