Court rules against cyber censorship

A US district court yesterday granted a preliminary injunction preventing the US government from enforcing the Child Online Protection Act (COPA) passed last year by Congress.

The ruling represents the latest victory for groups such as the American Civil Liberties Union (ACLU) that wish to prevent US lawmakers from regulating so-called "obscene" content on the Internet.

COPA would make it illegal for commercial Internet sites to knowingly transmit material that is deemed "harmful to minors." The bill was signed by US President Bill Clinton late last year, but has since been challenged by the ACLU and 16 other civil liberties groups that say the act violates free-speech rights.

In his 22-page ruling, Judge Lowell Reed Jr. acknowledged that the Internet presents a potential hazard for children. But he also noted that "non-obscene sexual expression" -- particularly among adults -- is constitutionally protected by the First Amendment to the US Constitution.

"While the public certainly has an interest in protecting its minors, the public interest is not served by the enforcement of an unconstitutional law," Reed wrote. "The interest of the public is served by preservation of the status quo until such time that this Court may ultimately rule on the merits of (the ACLU's) claim at trial."

Reed's preliminary injunction prevents the US Department of Justice (DOJ) from enforcing COPA until the case comes to a full trial, for which no date has yet been set. The DOJ has not said for sure that it will even pursue the case at trial.

In his ruling, which is posted on the ACLU's Web site at http://www.aclu.org/, Reed also noted that COPA does not specifically target "commercial pornographers," but could be used against anyone who distributes content on the Internet. He also highlighted the difficulty of regulating content that originates from outside the US, and mentioned the availability of filtering software that can be used to help protect minors from potentially harmful content.

In his conclusion, however, Reed belied a sense of personal anguish over his ruling today, and implied that the court would be amenable to some future legislation regulating Internet content so long as it doesn't pose a threat to free speech.

"This Court and many parents and grandparents would like to see the efforts of Congress to protect children from harmful materials on the Internet to ultimately succeed and the will of the majority of citizens in this country to be realised through an act of Congress," he wrote. "However, the court is acutely cognisant of its charge under the law of this country not to protect the majoritarian will at the expense of stifling the rights embodied in the Constitution.

He continued, "Despite the Court's personal regret that this preliminary injunction will delay once again the careful protection of our children, I without hesitation acknowledge the duty imposed on the court and the greater good such duty serves. Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they with age will inherit fully, are chipped away in the name of their protection."

This is not the first attempt by the US Congress to regulate content on the Internet. That legislative body in 1996 passed the Communications Decency Act (CDA), which purported to regulate access by minors to content deemed "indecent" and "patently offensive." In 1997, in the case ACLU vs. Reno, the CDA was struck down by the Supreme Court, the highest court in the U.S., as violating the First Amendment protections for freedom of speech.

COPA represents a congressional effort to remedy the constitutional defects in the CDA. After complaints from civil liberties organizations and Web content providers, Reed issued a temporary restraining order that prevented the enforcement of COPA up until his ruling today.

Neither the Department of Justice nor the ACLU could be reached for comment late today.

The ACLU, in Washington, D.C., can be reached at http://www.aclu.org/. The US Department of Justice, also in Washington, can be reached at http://www.usdoj.gov/.

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