ACLU Victorious in Defense of Online Free Speech

March 22, 2007 12:00 am

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Court Rules that Government May Not Censor the Internet

NEW YORK – A federal district court today ruled in favor of the American Civil Liberties Union’s longstanding challenge to an Internet censorship law, ACLU v. Gonzales. Although the law was enacted in 1998, courts immediately forbade the government from enforcing it because it suppressed a substantial amount of constitutionally protected speech.

“After nearly a decade of legal proceedings, the First Amendment has emerged victorious from the government’s illegal attempt at online censorship,” said Anthony D. Romero, Executive Director of the ACLU. “The courts have ruled, once again, that speech on the Internet is protected.”

At issue was the ACLU’s challenge to the “Child Online Protection Act” (COPA), which would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as valuable for adults but deemed “harmful to minors.”

Last October, the ACLU presented evidence at trial from a broad range of Internet speakers including online magazines, an online dictionary, rap artists, painters and video artists, providers of safer sex information, and writers. Attorneys argued that the censorship law directly violates the First Amendment rights of the ACLU’s plaintiffs, their members, and tens of millions of other speakers to communicate protected expression on the Internet.

“Technology evolves at an incredibly rapid pace, and our laws face the challenge of trying to keep up,” said ACLU Senior Staff Attorney Chris Hansen, who was lead counsel on the case. “Americans have the right to participate in the global conversation that happens online every moment of every day, and Congress does not have the right to censor that conversation.”

Joan Walsh, editor in chief of who was a plaintiff in the case, said that parents, not the government, should control children’s access to information and ideas. “Whether minors should read Salon is a question for their parents, not the government.”

COPA “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,” said Mitch Tepper, who was a plaintiff in the case and is the founder and president of the Sexual Health Network, which provides sexual health information for individuals with disabilities.

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, such as whether commercially available blocking software was still as effective as the banned law in blocking material deemed “harmful to minors.”

Judge Lowell A. Reed Jr. of the U.S. District Court for the Eastern District of Pennsylvania held today that the government’s “own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web.” He continued that “[t]he fact that Web publishers are faced with criminal prosecution for an alleged violation of COPA only serves to exacerbate the chilling effect resultant from the vagueness of the terms employed in COPA.”

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.

The legal team in the case includes Hansen, Aden Fine, Ben Wizner and Catherine Crump of the national ACLU and attorneys with the law firm Latham & Watkins, which has been working with the ACLU on Internet censorship battles since 1998.

More information, including a full list of plaintiffs, legal documents and the history of Congress’ attempts to censor the Internet, is available online at:

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