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Porn law that won't die
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March 15, 2001: 6:34 a.m. ET
The Supreme Court may review the Child Online Protection Act soon
By Elizabeth Hurt
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NEW YORK (Business2.0) - Regulation and the Internet will never mesh well together. As long as the world continues to be made up of dozens of different countries, and the Internet continues to effortlessly cut across their boundaries, there will always be a wild side to the World Wide Web. But even within just the United States, the disconnect still resonates. That clash is illustrated by the controversy surrounding the Child Online Protection Act (COPA).
COPA, aimed at preventing children from accessing "harmful" material on the Internet, spawns arguments typical of any pornography debate. But the Internet factor adds a new spin, and could force the Supreme Court -- if it takes the case -- to tackle the concept of "community" in the digital age.
The COPA law, signed by President Clinton in 1998, was immediately swallowed by a court injunction before it could take effect. A coalition of civil liberties groups -- led by the American Civil Liberties Union -- fought the U.S. Department of Justice, saying COPA violated the First Amendment rights of adults in attempts to protect children. The group prevailed in a lower court ruling, which was challenged by the DOJ; a federal appeals court then struck down the law.
But it still ain't over yet. In an expected move in February, Attorney General John Ashcroft filed a petition with the Supreme Court, asking the high court to overturn the appeals court ruling.
The Supreme Court is expected to announce whether or not it will hear the case within the next few weeks.
Taking a different focus than the lower court, the appeals court concentrated on the part of COPA that relies on "community standards" to determine what should be deemed harmful to minors. "Because of the peculiar geography-free nature of cyberspace, a 'community standards' test would essentially require every Web communication to abide by the most restrictive community's standards," the Third Circuit Court of Appeals wrote. "The inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech."
But in its petition, the DOJ argues that the appeals court ruling is not only wrong, but disarms Congress in its efforts to protect children.
"The [appeals] court was of the view that there may be no constitutional means to protect children from the harmful effects of the voluminous amount of pornographic material on the World Wide Web," reads the brief. "The court of appeals thus has gravely -- indeed, in its own view, perhaps fatally -- constricted Congress' power to address that serious problem."
COPA was constructed largely in response to the Supreme Court's problems with the Communications Decency Act (CDA), which attempted to tackle the pornography problem by banning material on the Internet that could be considered "patently offensive" or "indecent." The Supreme Court ruled in 1997 that the CDA was unconstitutional because it also restricts adult access.
Instead of outlawing the material, COPA crafters attempted to evade First Amendment concerns by requiring adults to somehow prove their age before accessing questionable content. But opponents claim the law still places an undue burden on adults and are also concerned by the wide-ranging amount of materials that might be considered "harmful to minors."
"Essentially, if this law were to stand, it would dumb down what's available on the Internet to what's appropriate for minors," says David Horowitz, executive director of the Media Coalition, a First Amendment advocacy group.
However, the law receives strong support from religious and conservative groups who argue that there need to be stiff laws, with stiff enforcement, to protect children from uncontrolled obscenity on the Web. Proposed punishments for defying COPA include penalties of up to $150,000 for each day of violation, and jail terms of up to six months. UCLA law professor Eugene Volokh says that while "community standards" have held up as acceptable criteria for determining offline pornography, the appeals court raises an important point in regard to the Internet.
"The community standards approach has traditionally meant that Utah can set up its own rules, and California can set up its own rules, so that people in West Hollywood would be allowed to access what West Hollywood finds acceptable, and people in Salt Lake City could only access what their community find acceptable," says Volokh. "But there's no way for distributors of materials on the Internet to tell where they're going, so in effect, COPA would require sites to always comply with the most restrictive standards."
The government's interpretation of community standards seems to give communities with more conservative views the advantage.
"It used to be a regime of minimal spillover of one community's standards onto another," says Volokh. "Now, with the Internet, one community's standards will inevitably affect others,' and the question is which way you choose for it to go. The government's argument is that the important thing is for people in the more restrictive communities to be able to set up their own standards, and to make sure they don't have to let what they find unacceptable into their community."
Legal experts disagree about the likelihood of the Supreme Court taking on the case. While attorney Doug Wood is doubtful the Supreme Court will hear the case, he says its opinion is needed.
"This is the very kind of case they ought to hear because it raises fundamental philosophical issues and they are the only people who can resolve them," says Wood. "Hopefully they will take this case and map out just what the standard is."
While First Amendment lawyer Robert Corn-Revere agrees the Supreme Court's voice could clear up some uncertainties, he is happier to see the law keep the fate assigned by the appeals court.
"On one level, it would be nice to see the Supreme Court take the case and affirm what the [appeals court] did and bring a lot more clarity to this area of law," says Wood. "But all things being equal, it would also be nice to see the Supreme Court take a pass because the third circuit got it right."
Even if COPA stays in the grave, Congress will probably never give up the issue of protecting kids from "evil forces" empowered by the Internet. Although COPA's constitutionality was questionable from the moment it was introduced in Congress, it passed the House with little opposition and was eventually tacked onto an end-of-the-year spending bill.
"It's politically irresistible," says Corn-Revere. "People who promote it argue that to be against the law is to be against kids." 
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