ACLU Returns to Supreme Court in Renewed Challenge to Internet Censorship Law

March 2, 2004 12:00 am

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WASHINGTON -The American Civil Liberties Union returned to the Supreme Court today to argue against an Internet censorship law that blocks legal and valuable online speech for adults without protecting minors from potentially harmful material.

The Court first blocked enforcement of the Child Online Protection Act in 2001 in response to an ACLU challenge, but sent the case back for further review. Today’s case revisits the same challenge, following a second appeals court decision rejecting the law.

“The Child Online Protection Act makes it a crime to communicate a whole range of information to adults and is ineffective at keeping children from material many people would agree is objectionable,” said Ann Beeson, Associate Legal Director of the ACLU, who argued the case in 2001 and appeared before the Justices again today.

“Although the government claims the censorship law is necessary to protect minors, it has not even used all of the tools currently available to protect them from sexually explicit content,” she added.

Despite long-standing federal obscenity laws, the ACLU noted in its brief, the government has prosecuted only a handful of obscenity cases in the last 25 years, thus failing to protect minors from materials that are obscene even for adults. Other effective means that have been implemented include the mandated use of blocking software in schools and public libraries as well as the creation of a safe online environment for children using the “.kids” domain.

The Child Online Protection Act imposes draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for material judged “harmful to minors.”

The speech that is criminalized under the law includes sexual advice and education, web-based chat rooms and discussion boards involving sexual topics, and websites for bookstores, art galleries and the news media.

Dr. Mitch Tepper, an ACLU client who attended today’s argument, said he fears that some communities will be offended by material on his website, which provides sex information for the disabled including articles such as “Sex Toys and Where to Purchase Them,” and “Hands-Free Whoopie.”

“While a government attorney in Washington might say my website is not ‘harmful to minors,’ a prosecutor in some other community may think differently, and as a result I could wind up in jail and bankrupt from huge fines,” Dr. Tepper said.

Briefs supporting the ACLU challenge were filed by a broad range of mainstream media and arts organizations, including the Association of American Publishers, American Society of Newspaper Editors, the Recording Industry Association of America and Volunteer Lawyers for the Arts.

COPA represents Congress’ second attempt to impose severe criminal and civil sanctions on the display of protected, non-obscene speech on the Internet. A first attempt, the Communications Decency Act of 1996, was declared unconstitutional by all nine justice of the Supreme Court in Reno v. ACLU.

COPA was passed by Congress in 1998 in an attempt to replace the earlier law and was first considered by the Supreme Court in Ashcroft v. ACLU in 2001. The Court kept a ban on the law in place and sent the case back to the Third Circuit Court of Appeals for further evaluation. In March 2003, the appeals court again found the statute unconstitutional, saying that the law would block lawful and valuable speech for adults.

In addition to Beeson, ACLU attorneys in the case are Legal Director Steven R. Shapiro, Christopher Hansen and Sharon McGowan of the national office, and Stefan Presser, Legal Director of the ACLU of Pennsylvania. Christopher R. Harris, Michele M. Pyle, and Mark H. Goldberg are volunteer 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.

Today’s case is Ashcroft v. ACLU, No. 03-218.

An ACLU web feature about the case, including links to legal papers and a “slideshow” of web sites that would be censored under the law is online at /node/23705

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