COPA is Unconstitutional, Appeals Court Rules

FRAMINGHAM (06/23/2000) - Sixteen months after a lower court declared that a law designed to protect children from pornography on the Internet was unconstitutional, a U.S. Appeals court has reached the same conclusion.

The unanimous decision issued yesterday in Philadelphia by a three-judge panel in the 3rd U.S. Circuit Court of Appeals marks the second time that a law passed by Congress to deal with Internet pornography has been struck down by the courts since 1997. In the previous decision regarding the Children's Online Privacy Act (COPA), a federal judge in Philadelphia halted enforcement of the law.

In the 34-page decision this week, appeals court Judge Leonard Garth, writing the opinion for the court, said that "curtailing constitutionally protected free speech will not advance the public interest, and neither the government or the public generally can claim an interest in the enforcement of an unconstitutional law."

However, Garth did note that while the laws enacted so far haven't been crafted to meet constitutional challenges, the day will probably come when an enforceable Internet pornography law will be enacted.

"We also express our confidence," he wrote, "and firm conviction that developing technology will soon render the 'community standards' challenge moot, thereby making congressional regulation to protect minors from harmful material on the Web constitutionally practicable."

In the same way that scrambling a cable TV signal prevents minors and non-subscribers from viewing adult television, future developments will make it possible to control the Internet access of minors without trampling on the First Amendment rights of publishers or broadcasters, he explained.

Opponents of the COPA law, who saw it as an infringement on First Amendment rights, lauded the court's decision.

"We are thrilled, we think this is a very significant decision in support of free expression," said Marc Rotenberg, executive director of the Washington-based Electronic Privacy Information Center. "One of the things that we were able to establish in this case is that there would be a chilling impact on a whole range of online publications, from mainstream to across the board, and we continue to believe that the right of privacy and right of free speech exist online and they should be protected."

Leading the fight against COPA in court was the American Civil Liberties Union, which challenged the 1998 law on behalf of 17 groups and individuals.

Beeson was one of the ACLU attorneys who argued the case before a three-judge panel last November.

COPA mandated that Web sites visited by children under the age of 13 had to post a privacy policy describing what information they would collect about site users. They were also to have parental notification and approval systems in place, according to the law.

It also made it a federal crime to use the Internet for the commercial distribution of materials that could be considered "harmful to minors," with penalties of up to $150,000 for each day of violation and up to six months in prison.

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