Federal Court Once Again Upholds Ban On Unconstitutional Internet Censorship Law

July 22, 2008 12:00 am

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Decision Underscores ACLU’s Decade-Long Challenge To So-Called Child Online Protection Act

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PHILADELPHIA – In a clear victory for free speech today, a federal court once again upheld a ban on a law that would criminalize constitutionally protected speech on the Internet. The American Civil Liberties Union challenged the unconstitutional Child Online Protection Act (COPA) on behalf of a broad coalition of writers, artists and health educators who use the internet to communicate constitutionally protected speech.

“For years the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional,” said Chris Hansen, Senior Staff Attorney with the ACLU First Amendment Working Group. “The government has no more right to censor the Internet than it does books and magazines.”

Previously, a federal district court and a federal appeals court found the online censorship law violates the First and Fifth Amendments of the Constitution. The Supreme Court upheld that decision, effectively banning enforcement of the law in June 2004 and sending the case back to the district 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 might be in blocking material deemed “harmful to minors.” In March 2007, a district judge once again struck down COPA; the government again appealed, and today the U.S. Court of Appeals for the Third Circuit upheld the ban.

The ACLU’s clients in the case include Salon Media Group, which runs the online magazine Salon.com; the Sexual Health Network, which operates sexualhealth.com; and Aaron Peckham, who owns UrbanDictionary.com. COPA would have imposed harsh criminal sanctions, including penalties of up to $50,000 per day and up to six months in prison, for material acknowledged as protected for adults but deemed “harmful to minors.”

“Our clients provide valuable and necessary health and news information. Preventing adults from accessing this information under the guise of protecting children is not permissible,” said Aden Fine, Senior Staff Attorney with the ACLU First Amendment Working group. “There are more effective, less intrusive tools available to limit what minors can access on the Internet.”

In upholding the ban on COPA, the court again affirmed that COPA is unconstitutional because it is not tailored to advance the government’s interest in protecting children; there are less restrictive, equally effective alternatives to COPA; and COPA is unconstitutionally overbroad and vague.

Attorneys in the case, ACLU v. Mukasey (originally ACLU v. Reno, then ACLU v. Ashcroft, then ACLU v. Gonzales) are Hansen, Fine, Catherine Crump and Ben Wizner of the ACLU; and attorneys with the law firm Latham & Watkins including Christopher Harris, Jeroen van Kwawegen and Katharine Marshall.

Today’s decision is available online at: www.aclu.org/freespeech/internet/36065lgl20080722.html

More information about the ACLU’s challenge to COPA is available at: www.aclu.org/copa

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