Appeals Court Rejects Congress' Second Attempt at Cyber-Censorship

June 22, 2000 12:00 am

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PHILADELPHIA — In a unanimous decision issued late today, a federal appeals court here struck down as unconstitutional Congress’s second attempt to criminalize speech on the Internet.

The American Civil Liberties Union, which challenged the 1998 “Child Online Protection Act” on behalf of 17 groups and individuals, welcomed the decision and said the court’s strong language should persuade the Justice Department and lawmakers to end wrongheaded attempts to regulate the unique medium of the Internet.

“We are deeply gratified that the court recognized the danger this law represented to our clients, who faced jail time and heavy fines for speech that is unquestionably protected by the Constitution,” said Ann Beeson, one of the ACLU attorneys who argued the case before a three-judge panel last November.

“Clearly, the court is not satisfied with Congress’s efforts in this area,” Beeson added. “We now call on Congress and the Clinton Administration to close the book on this early chapter of Internet history and embrace free speech online as we have embraced it in every other significant communications medium.”

The so-called “Child Online Protection Act,” also known as “COPA,” made it a federal crime to use the World Wide Web to communicate “for commercial purposes” material considered “harmful to minors,” with penalties of up to $150,000 for each day of violation and up to six months in prison.

The speech at issue today, Beeson noted, included sexual advice columns, discussion boards on gynecology, and websites for a bookstore, an art gallery, and the Philadelphia Gay News, among others.

In its legal challenge to the Act, the ACLU said constitutional flaws in this law were identical to the flaws that led the Supreme Court to strike down the “Communications Decency Act,” Congress’s earlier attempt at Internet censorship, in a landmark 1997 ruling.

In their 34-page decision, the judges today upheld a lower court finding that the 1998 law “imposes a burden on speech that is protected for adults.”

However, while the lower court based its finding on a variety of First Amendment flaws in the law, the ACLU noted, the appeals court today focused chiefly on the fact that it is impossible to establish one ‘community standard’ by which Internet speech could be governed.

“Because of the peculiar geography-free nature of cyberspace,” the appeals court wrote, “a ‘community standards’ test would essentially require every Web communication to abide by the most restrictive community’s standards.”

The overbreadth of the 1998 law “so concerns us,” the appeals court said, “that we are persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute.”

Commenting on the particular focus of the appeals court’s ruling, ACLU Senior Staff Attorney Chris Hansen, noted, “The district court found the statute unconstitutional because it was impossible to verify age. The court of appeals finds it unconstitutional because it is impossible to verify geography.”

The government now has three options, Hansen said: it can admit defeat and let today’s ruling stand; it can appeal the decision to the Supreme Court, which is not obligated to review it; or it can go back to the District Court and ask for a full trial.

ACLU challenges to state “harmful-to-minors” laws were successful in New Mexico and New York. Another case from Michigan was successful and is now on appeal.

The appeals court’s decision today is online at

The case is ACLU v. Reno II, No. 99-1324. The three-judge panel of the Third Circuit Court of Appeals was comprised of Judge Theodore Alexander McKee, Judge Leonard I. Garth, and Judge Richard Lowell Nygaard.

The 17 plaintiffs represented in ACLU v. Reno II are: American Civil Liberties Union (on behalf of all its members including Nadine Strossen, Lawrence Ferlinghetti, Patricia Nell Warren, Mitchell Tepper and David Bunnell); A Different Light Bookstore; American Booksellers Foundation for Free Expression; 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 (Links to these websites can be found here).

The ACLU’s brief in the case is online here.

ACLU attorneys in the case are Ann Beeson and Christopher Hansen of the national office and Stefan Presser, Legal Director of the ACLU of Pennsylvania. Catherine Palmer, Christopher R. Harris, Michele M. Pyle, Douglas A. Griffin and Kate Bolger are volunteer attorneys from the law firm Latham & Watkins in New York City; David Sobel of Electronic Privacy Information Center and Shari Steele of Electronic Frontier Foundation are co-counsel.

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