Online Free Speech
In a clear victory for free speech, the Supreme Court has announced that it will not hear the government's appeal of a ban on the Child Online Protection Act (COPA), the federal law that would criminalize constitutionally protected speech on the Internet.
Lower courts have rejected the law as unconstitutional and it has not gone into effect in the 10 years since it was passed. In 2004, the Supreme Court upheld an injunction against the law on the grounds that it violated the First Amendment. The ACLU first challenged COPA on behalf of a broad coalition of writers, artists and health educators who use the Internet to communicate constitutionally protected speech.
Ten Years of Defending Free Speech Online
1.1996 - Congress first attempted to censor the Internet
The ACLU's fight against Internet censorship stretches back a decade. Congress first attempted to censor the Internet in 1996, when it passed the Communications Decency Act. The law criminalized "indecent" speech online. The ACLU sued, arguing that the law abridged the First Amendment. All nine Supreme Court justices agreed and struck down the law. For the first time, in ACLU v. Reno, the Supreme Court recognized that online speech deserves full First Amendment protection.
2.1998 - Congress passed the Child Online Protection Act (COPA)
In reaction to the Supreme Court's decision, Congress passed the Child Online Protection Act (COPA), a federal law that imposes severe criminal and civil penalties on people who put material the government deems "harmful to minors" on the Web. COPA was obsolete from its inception because Congress, in its haste to regulate the emerging medium, failed to predict that new technologies would render the law meaningless. The ACLU sued the day that COPA came into force and the district court quickly halted enforcement of the censorship law. It held that the ACLU was likely to succeed in proving the law unconstitutional.
3.2000 - The Children's Internet Protect Act (CIPA) was signed into law
Introduced in Congress in 1999, the Children's Internet Protection Act (CIPA) was signed into law in 2000. The ACLU and the American Library Association filed a lawsuit, Multnomah County Public Library et al. v. Ashcroft, seeking to get the law enjoined because it violates the Constitution to require libraries to use filters on public computers. In a nuanced ruling, in 2003, the Supreme Court upheld the law, but modified it so that if a patron asks, the library must remove the filter.
4.2004 - The Supreme Court upheld the district court's decision in COPA
The Supreme Court upheld the district court's decision to stop the enforcement of COPA. Because the Internet had changed dramatically in the five years since the district court gathered factual evidence, the Justices returned the case to the district court for a full trial on whether there are effective ways to keep children safe online that burden speech less than COPA's criminal penalties.
5.2007 - A federal court again upheld challenge to COPA
Judge Lowell A. Reed Jr. of the U.S. District Court for the Eastern District of ruled in favor of the ACLU’s longstanding challenge to COPA. Previously, a federal district court in Philadelphia and a federal appeals court found the online censorship law unconstitutional, and the Supreme Court upheld the ban on enforcement of the law in June 2004. The Justices, however, also asked the Philadelphia court to determine whether there had been any changes in technology that would affect the constitutionality of the statute.
- Court Strikes Down Internet Censorship Law
- Take Three: Appellate Court Hears Challenge to Internet Censorship . . . Again
- ACLU Staff Observations
- Liveblogging from Rufus Griscom and Moe Tkacik of Nerve.com
- Heather Corinna Blogs About the Trial
- Patricia Nell Warren: Taking It Personally
- ACLU Wins 10-Year Legal Battle To Protect Free Speech (1/21/2009)
- ACLU Calls On Broadcasters To Stop Stifling Political Discourse On YouTube(10/20/2008)
- Federal Court Once Again Upholds Ban On Unconstitutional Internet Censorship Law (7/22/2008)
- ACLU Urges Court To Uphold Ban On Unconstitutional Censorship Law(6/10/2008)
- Court Rules that Government May Not Censor the Internet (3/22/2007)
- Landmark Online Free Speech Trial Wraps Up (11/17/2006)
- ACLU Returns to Court to Defend Online Free Speech (10/23/2006)
- ACLU Urges Court to Reject Government's Bid for Google Records(3/14/2006)
- ACLU Returns to Supreme Court in Renewed Challenge to Internet Censorship(3/2/2004)
- Ruling a Second Time, Federal Appeals Court Upholds Ban on Internet(3/07/2003)
- ACLU Defends Internet Free Speech in Three Courts Coast to Coast(11/1/2002)
- ACLU Files Brief in Second Supreme Court Battle Over Internet Censorship(11/20/2001)
- Legal Documents
- Brief in Opposition (11/26/2008)
- Opinion of the Court (7/22/2008)
- ACLU Brief for the Appellees (10/22/2007)
- Government's Appeal Brief (9/17/2007)
- Decision in ACLU v. Gonzales (3/22/2007)
- Amended Complaint for Declaratory & Injunctive Relief (12/8/2004)
- Report of Congressional Commission on Online Child Protection (October 2000)
- ALA: Child Internet Protection Act
- EPIC: Ashcroft v. ACLU - The Legal Challenge to COPA
- ALA: CPPA, COPA, CIPA - Which is Which?
The ACLU represents a broad coalition of writers, artists and health educators. They contend that the government's attempt to limit the Internet to G-rated content effectively suppresses a great deal of speech that adults are entitled to communicate and receive. They also argue that because COPA's penalties include jail time, many people will self-censor rather than risk violating the law's vague prohibition on "harmful to minors" material.
Joan Walsh is the Editor-in-chief of Salon.com, an online magazine featuring articles on current events, the arts, politics, the media and relationships.
Salon has been fighting COPA since before I joined the company eight years ago, and I'm proud to continue that tradition, although I'm sorry that we still have to fight at all. The stakes for us are enormous. It's no small feat having amassed an audience of three million readers a month over 11 years, and it's a daily battle to keep them, given the diversity of Internet sites and other media organizations competing for their attention. What keeps Salon drawing new readers is its independence and fearlessness, whether covering torture at Abu Ghraib, the battle over sex education in our schools, or cultural crosscurrents affecting family life, relationships and yes, even sex. We believe Salon's unique blend of breaking news, cultural commentary and user-generated content would be gravely threatened by the provisions of COPA.
Clearly, the question of whether Salon's content could be deemed "harmful to minors" is very subjective. Over the years COPA defenders have used several arguments to show that COPA's harm to Salon would be nonexistent or minimal. According to one line of reasoning, much if not all of our sexually explicit or provocative content can be deemed to have redeeming social value, and thus we'd never face prosecution under the law. Others have argued that our edgy content might well require us to document that our users are over 18 -- but that such requirements would not be burdensome to our business. Both lines of reasoning are wrong.
As Salon's editor in chief, I would of course argue that all of our content, whether sexually explicit or politically controversial, has redeeming social value. But some people would clearly not agree. Under COPA it would only take one U.S. attorney with a different view -- a different view of the social value of stories about young gay men who've had sexual relationships with older men; about elite prostitution businesses; about the wonderful new world of sex toys; or about our nationally renowned archive of hundreds of photos and videos depicting torture and sexual humiliation at Abu Ghraib -- for us to face a challenge to our right to publish independent, provocative content, using COPA.
Turning to the other argument of COPA defenders -- that even if COPA required us to create a process to ensure that our readers are indeed over 18, such a requirement wouldn't imperil our business -- we find even more false assumptions. We know that from first-hand experience that creating any barrier to entry depresses traffic, audience growth and ultimately revenue. In 2003 we introduced our "Sitepass" model, in which readers who don't subscribe can read the site for free, if they'll watch a brief ad. Although we know that model helped restore some readership we had lost when we switched to a membership model, we also know it still dampens our traffic -- and thus our advertising revenue. On days when we feature exclusive stories and get a lot of Web traffic and new visitors from other sites, we know that as many as 90 percent of readers who come to read our breaking story fail to click through the initial screen to do so. Clearly, putting up a gate to all Salon visitors, and requiring them to prove they are of legal age to read it would take a big chunk out of our traffic, and cost us the reach and readership we need to attract and retain advertisers.
As the mother of a 16-year-old daughter, I care deeply about protecting children from explicit or exploitive content or images, and I work hard to make sure my child is smart about the way she uses the Internet, the sites she visits and how she communicates with others. That is my job as a parent. I'm proud to have her read Salon -- and she and her friends do read it. Whether other minors should read Salon is a question for their parents, not the government. I'm proud to join the ACLU's challenge to this intrusive law.
Mitchell S. Tepper is the founder and president of The Sexual Health Network, Inc.
Visitors of all ages come to my Web site, SexualHealth.com, looking for answers to sexually explicit questions that they have been too afraid or too embarrassed to ask their doctors, their parents, their partners, their teachers or their religious leaders. Some questions are apparently from minors who simply want to know, "Am I normal?" Younger visitors tend to ask about body image, genital image, masturbation and chances of getting pregnant or a disease from various sexual activities and behaviors. We get questions from adults on topics ranging from pain during intercourse, abnormal bleeding, post partum sex, and low sexual desire to erectile dysfunction, early or delayed ejaculation, infertility and effects of medications. We also get questions about sex and disability, and about sex and aging. SexualHealth.com plays an invaluable role in filling the sexual health information gap with medically accurate and potentially life saving content.
In fulfilling our mission of ending the silence around sexual health related matters by making sexual health information easily accessible at the click of a mouse, I and my company, The Sexual Health Network, Inc., would be at risk of criminal prosecution under the Child Online Protection Act if we continued to offer easily accessible, uncensored content. COPA makes it a criminal offense to make available to minors any form of communication that may be deemed harmful with respect to minors. The statute is overly broad, covering matter as benign as the exhibition of a "post-pubescent female breast." Since we publish thousands of sexually explicit questions along with frank answers and articles that depict, describe, or represent sexual acts or conduct that some may find patently offensive with regard to minors, we would be potential targets under COPA.
I agree that there is a compelling interest to protect minors from harm’s way when they are using the Internet. However, COPA does not serve this interest and may put children at greater danger. COPA misses the target by focusing on static content instead of interactive platforms like chat rooms and instant messaging where children are at real risk of harm. Hence, COPA would leave parents and guardians with a false sense of security when their children are online.
In missing the target, COPA would cause significant collateral damage. Under COPA, the government would require SexualHealth.com to collect visitors’ credit card information in order to verify age before they can access our site. The easy access, affordability and anonymity that has allowed millions of our visitors over the past 10 years to bypass guilt, shame and embarrassment in search of hard to find answers would be lost. COPA would block minors and seriously deter adults from visiting SexualHealth.com, perhaps making it impossible for my company to maintain our Web site. The government would essentially abolish visitors’ free, easy and anonymous access to life enhancing, empowering and even life saving public health information in the name of protecting children from harm.
Heather Corinna is a writer, artist, sex-educator and activist whose primary commercial presence on the Web consists of three Web sites that she owns and operates; Scarlet Letters, Scarleteen and Femmerotic.
Those of us reared in this country are told our nation is one founded on principles of civil liberties and freedom of speech and expression from the moment we begin school. And yet, quite unfortunately -- especially when it pertains to matters of sexuality -- we find those freedoms put at risk by our government itself, the very body which we elect and entrust to protect them.
As an artist well-versed in contemporary art history, I am well aware that censorship -- especially when sexuality or the body are the subject -- has been and remains a profound problem here. Many in our country have made clear that sex outside of legal marriage is morally reprehensible, that any sort of sex under a certain age is the same, and often, that any sort of sex or sexual presentation which does not have the appearance which the moral majority feels is acceptable is obscenity. And this very often does NOT include sexuality which is authentic to women. My art often includes nude or overtly sexual self-portraiture, and this alone could easily keep me from ever going back to being a teacher of young children as I once was. There is a pervasive community standard which paints me as obscene and potentially dangerous to minors merely because, however creatively I may do so, if my body is in my art, it is obscene.
I am not of the mind that most commercial pornography -- material fully intended as such -- meets any vital human needs, nor do I feel most of it is particularly positive, beneficial or of remarkable value. It is absolutely my place to voice my objections as I feel necessary when it comes to pornography. Yet, it is NOT my place to apply those personal opinions to our populace as whole, to decide for them what they will or will not view. It is also not my place to arbitrarily assign the title of "pornography" or "obscenity" to any given material. Nor is it the place of the United States government do so, or to give themselves, myself or anyone else the capacity to override the right of any citizen to freedom of speech and expression based on our personal opinions, and that is expressly what COPA aims to accomplish.
But COPA isn't just about pornography. COPA, as it stands, could make it an absolute impossibility for me to serve my userbase at Scarleteen.com -- young adults -- with the needed, and sometimes detailed or explicit, sexual education and information they request daily, and in increasing numbers over the years largely because our federal government has already made sexuality information and education inaccessible to many at their schools. Having to apply an age screen to keep out those under 18 would entirely negate the purposes of my work in this regard, which is to serve them. COPA renders my aims -- and the needs of young adults, to protect THEMSELVES, and to do that whole life, liberty and pursuit of happiness schtick we keep hearing so much about -- moot.
I am also concerned in another regard to women and COPA, that COPA would limit an anonymity and privacy which is essential for many women for the exploration of sexuality. Women still do not have the cultural permissions which men do to inhabit and explore their sexuality, and so their privacy and anonymity in exploring aspects of same via the Internet are of particular import. Again, COPA places a greater burden on those of lesser agency.
It should be our government keeping watch for, advocating for, those citizens with the least power and agency.
Instead, with the proposal of COPA, we see our current administration yet again serving the interests of those with the most. COPA will not damage or put at risk the operation, profits or wide net of the mainstream, commercial pornography industry, nor do I believe it will offer children any protections.
Patricia Nell Warren is a member of the ACLU, an investigative journalist, a columnist and an author of gay and lesbian books, including The Front Runner.
Every American should actively fight for free speech. It is no accident that this right is established by the First Amendment, not the Second or Third. If we don’t have free speech, we don’t have the freedom to protect other rights. American authors need to be especially protective of all free speech, because the print media are such a fundamental vehicle for thought and expression in any culture. That is why I -- as a novelist and journalist -- decided to be an ACLU plaintiff against the Child Online Protection Act.
COPA seeks to criminalize the sale, on the World Wide Web, of content that might be deemed “harmful to minors.” Supposedly this legislation will protect minors from purchasing hard-core pornography online. But the United States already has the legal power to prosecute pornographers. COPA, if found constitutional, will be given a much broader interpretation. As the American political climate grows ever more reactionary, there are people who would brand “harmful to minors” any content that deals with sexuality, sexual orientation, sexual and reproductive health, women’s issues, and non-Christian religion and spirituality, to name just a few.
As a student of history, I notice that censorship has always been a hallmark of repressive governments. Free societies don’t fear questions and debate among their citizens. Many teens have legitimate questions about human life, and seek answers through what they read. I predict this law, if upheld, will be used as a weapon of uncontrolled censorship.
As the author of several novels about gay life -- including one that can found in chain bookstores, public libraries, college libraries, college reading lists and counseling work by psychotherapists and ministers ever since it was published in 1974 -- I fear for the future of my ability to publish. I know that the reactionary element in American society would like to see the sale of books like mine “criminalized,” so they become unavailable to minors for purchase online. Censorship of books online will inevitably affect what is available in brick-and-mortar bookstores.
As an author of “literary speech,” I take free speech very personally -- as well as the freedom of young people to choose for themselves what they may read.
Aaron Peckham owns and maintains Urban Dictionary.com, an online dictionary of contemporary slang with more than 400,000 definitions for slang words and phrases.
Urban Dictionary has always been about freedom of expression -- the freedom to share your words and your meanings (and your humor) with the world. I started Urban Dictionary in 1999, and in the last seven years people have sent more than two million definitions to Urban Dictionary. They range from "adorkable" (both dorky and adorable), to "top up music" (music you only listen to when your car's windows are closed), to heated definitions of what we really mean by "liberal" and "conservative." They're funny and opinionated, and each definition gives readers an idea of what the author's life is like.
I'm participating in this lawsuit because I don't see a reason to limit the expression of the site's authors. Everyone deserves the opportunity to express themselves, and everyone deserves the opportunity to understand everyone else. Urban Dictionary tries to make that kind of understanding possible (and be funny at the same time). It's a dictionary that reflects the real world because it gives people the freedom to define the world, in their terms.
Free speech and the Internet go hand in hand, because online, anyone with a computer can be heard. The Internet equalizes people like that -- no matter how much money you have, or how old you are, you can connect with a huge number of people. And it's getting easier as computers become cheaper and easier to use.
Urban Dictionary is one of a huge number of sites where people can talk and think about the world. It's a place for people to freely express themselves and to write about their lives through the definitions they post. Everyone's a wannabe sociologist, and you can see that come out in Urban Dictionary. It's also a way to watch our language evolve and to see what's hot in pop culture.
I'm working on the second Urban Dictionary book. The first one came out in 2005, with a few thousand of the site's best definitions. Language changes quickly, so it's out of date already. In addition to the book, the site has shown up in lots of other places, like a court case in the U.K., trademark disputes, newspaper articles and graduation speeches. Urban Dictionary shows that the voice of the people is a great resource for figuring out what's going on in the language and the culture.
Urban Dictionary evolved to what it is today because people used it for their own purpose -- self-expression. My job is to support that use, and that's why I'm participating in this lawsuit.
Adam Glickman started Condomania, the nation's first condom store and a leading online seller of condoms and distributor of safer-sex related materials.
Sixteen years ago, I opened Condomania, America's first condom store, with the mission to educate people and change the way they thought about condoms. In 1996, we became one of the first sites on the Internet selling safer sex products, and one of the leading sites providing comprehensive, frank educational information about various issues surrounding sexual health. The Internet literally opened the door to our stores for people worldwide to benefit from our expertise.
Condomania is proud of its outstanding reputation in the public health world, the national media and among the general public. Notably, the Centers for Disease Control regularly refers individuals to Condomania for information about condoms and related safer sex issues. While many parents educate their children about sexual health, millions more do not. And while some progressive schools provide unbiased, non-political knowledge on sexual health to their students, many more do not. Condomania regularly provides information to anyone who needs it, no questions asked.
The potential impact of COPA, in the midst of a public health crisis, cannot be understated. Since Congress passed COPA in October 1998, there have been more than eight million unintended teenage pregnancies in the United States; the United States has twice the teen pregnancy rate of any other industrialized nation. In the same time period there have been 120 million new cases of STDs, including an estimated 320,000 cases of HIV.
Requiring age verification will not only prevent young people – including many desperate for candid, honest information they can understand – from accessing our site, but it would inevitably deter others who are old enough. Whether due to the hassles of registering, or the fear that our site contained “inappropriate” information, the impact on Condomania's business would be severe. COPA would result in tarnishing a valued brand, built up over years of hard work, by grouping us with pornographers.
Like all parents, I seek constantly to protect my young children from harm. But I disagree strenuously with COPA's definition of “material that is harmful to minors.” Restricting the ability of anyone, especially young people, to access information that can save their lives is not consistent with the stated objective of COPA to “protect the physical and psychological well-being of minors.” I am quite proud of the information Condomania.com offers, and the difference we have been able to make these past 16 years. And that is why I am proud to participate in this important litigation.