Supreme Court strikes down Internet censorship law
Nick Cargo
Published: Wednesday January 21, 2009

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It took ten years, but free speech advocates are celebrating the demise of a controversial law they said violated the First and Fifth Amendments in its aims to "protect children."

The American Civil Liberties Union announced Wednesday that the Supreme Court will not hear Mukasey v. ACLU, the Bush administration's attempt to appeal federal court rulings against the Child Online Protection Act (COPA), passed by Congress in 1998 after the fall of the 1996 Communications Decency Act.

"For over a decade 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 ACLU senior staff attorney and lead counsel Chris Hansen. "It is not the role of the government to decide what people can see and do on the Internet. Those are personal decisions that should be made by individuals and their families."

Federal Judge Lowell A. Reed Jr. in Philadelphia struck the first blow to the law with an injunction in 1999, the Third Circuit of the United States Court of Appeals upholding the decision in June 2000. The Supreme Court concurred in June 2004, pending trial. Judge Reed, in early 2007, again ruled COPA unconstitutional, leading to Mukasey.

COPA, as codified, would have made it an offense punishable by a fine up to $50,000 and/or up to 6 months' imprisonment for transmitting "any material that is harmful to minors" for commercial purposes on the World Wide Web if not put behind a safeguard such as a requirement for payment or a special access code. Additional fines would have been levied for "intentionally" violating the law.

Material deemed "harmful to minors" under COPA included written, photographic, recorded and otherwise "communicated" material that, based on the average person's interpretation of "contemporary community standards," is "obscene" or "designed to appeal to, or is designed to pander to, the prurient interest." The law further reads that any material that "depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast," that "taken as a whole, lacks serious literary, artistic, political or scientific value for minors."

Among the plaintiffs in the lawsuit, filed by the ACLU and the Electronic Frontier Foundation was novelist and activist Patricia Nell Warren of Wildcat Press. "Wildcat's position was this," she said. "[These] two bills were supposedly aimed at hard-core porn but they were so broadly written that they would be used to criminalize the commercial provision of all kinds of legitimate content to minors on the Internet, whether health information or literature. And such laws definitely would be used by ultraconservatives to limit availability of LGBT content on the Web. For this reason, we felt that it was important for us, as a gay-owned small press, to participate in these lawsuits. The Philadelphia Gay News was also involved.

"The Supreme Court decision puts the onus where it belongs -- on parents, who have the right to use software filters to try keeping their minor kids from viewing material that they disapprove of."

"The Court's decision not to review COPA for a third time affirms what we have been saying all along," ACLU Legal Director Steven R. Shapiro said. "[The] government has no right to censor protected speech on the Internet, and it cannot reduce adults to hearing and seeing only speech that the government considers suitable for children."