Internet Censorship Battles Moves to Appeals Court

April 2, 1999 12:00 am

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PHILADELPHIA — The battle for online free speech today returned to a federal appeals court as the Justice Department sought review of a ruling that had blocked enforcement of Congress’s second attempt to censor the Internet.

The American Civil Liberties Union — which challenged 1998’s Child Online Protection Act along with the Electronic Privacy Information Center and the Electronic Frontier Foundation — said that Internet users will almost certainly continue to be protected from prosecution while the case goes forward.

The Justice Department had until today to decide whether to appeal a February 1 preliminary injunction in which U.S. District Judge Lowell A. Reed found that the ACLU was likely to succeed on the claim that the law “imposes a burden on speech that is protected for adults.” If the government had not appealed, the case would have proceeded to a full trial on the merits of the law under Judge Reed.

The 1998 law would make it a federal crime for commercial websites to communicate material considered “harmful to minors.” Penalties would include criminal and civil fines of up to $150,000 for each day of violation and up to six months in prison if convicted.

Under standard judicial procedures, the case will now be heard by a randomly chosen three-judge panel of the Third Circuit Court of Appeals, which is based in Philadelphia. Given the lengthy legal preparation required by both sides, it is unlikely that the panel will schedule arguments in the case before the fall.

Chris Hansen, an ACLU senior staff attorney and one of the lead lawyers on the case, said he considers Judge Reed’s opinion “extremely defensible.”

Judge Reed’s ruling came after a six-day hearing at which the ACLU presented testimony from website operators who provide free information about fine art, news, gay and lesbian issues and sexual health for women and the disabled, and who all fear that the law will force them to shut down their websites.

“We put on a good trial,” Hansen said. “The evidence we presented fully supported the judge’s ruling.”

Last February was not the first time a federal court blocked an Internet censorship law passed by Congress. In a landmark 1997 decision, the United States Supreme Court declared the Internet to be deserving of the highest First Amendment protection as it struck down the so-called Communications Decency Act.

Under special rules devised by Congress, that case — ACLU v. Reno — was brought directly before a special three-judge panel and the government’s appeal went directly to the high court.

In today’s challenge — known as ACLU v. Reno II — the Third Circuit’s ruling could send the case back down to Judge Reed in the lower court for a full trial, or up to the Supreme Court for an appeal.

Hansen noted that while the Supreme Court was required by a special legal provision to accept an appeal in ACLU v. Reno I, no such requirement was written into the current Internet law. Any appeal to the justice’s would therefore be accepted solely at the Court’s discretion.

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