COPA Trial Becomes Battleground for Experts

Michael Hayes
PHILADELPHIA — With the Child Online Protection Act (COPA) trial entering its third week to determine the constitutionality of a law that — if enforced — would require adults to use access codes or credit cards to view material considered to be “harmful to children” online, the Philadelphia Inquirer has reported that the courtroom has become a battle of the pundits, with expert witnesses making the case for each side.

The trial over the 1998 COPA legislation, which provides for $50,000 in fines and up to six months in prison for webmasters who fail to comply with the law, has become a “porn trial without dirty pictures,” Philadelphia Inquirer staff writer Joseph Gambardello said.

In a pretrial ruling, U.S. District Judge Lowell Reed, who is presiding over the bench trial, said the display of adult material would not be necessary in the American Civil Liberties Union Case against the U.S. Government.

Making the case that COPA is an overbroad restriction of protected speech and that filters are a better solution, the ACLU lawyers have called a range of artists, online writers and filtering experts as witnesses in the trial.

Countering the plaintiff’s claim that filtering is an effective way to keep children from viewing adult content, Justice Department lawyers relied on Rutgers University linguistics professor Stephen Neale, who told the court that no filter could succeed in blocking every porn site. Neale also made the point that filters run the risk of blocking legitimate sites. For example, most filters would, likely block a site dedicated to the issue of breast cancer,, Neale said.

On cross-examination, an attorney for the ACLU asked Neale how all porn sites could be blocked?

“Pulling the plug on the web is the only thing I can think of,” Neale said.

In a separate component of the trial, both sides presented witnesses addressing COPA’s mandate that users verify their age with access codes or credit cards.

According to government lawyers, credit cards are an excellent way to safeguard children online. ACLU lawyers made the point that some minors have access to credit cards while many poor adults do not.

One potentially big revelation from the trial, according to Gambardello, was the government’s concession that many of the plaintiffs in the case would be covered by COPA.

The ACLU has taken the lead in the case among a list of plaintiffs that includes, Condomania and sex advice site With Justice Department lawyers saying the plaintiffs in the case are not the intended targets of the law, Gambardello said the focus was clearly online pornographers.

Free Speech Coalition Board Chair said he didn’t believe the government’s assertion that some of the plaintiffs would not fall under COPA.

“Because of the vagueness of the definitions in the law, it’s impossible to determine what harmful material really is, which means we don’t know the sites that will be covered,” Douglas told XBIZ. “What they’re really saying is, ‘Trust us; we won’t go after legitimate publications.’ That’s a joke.”

In 1999, Reed issued an injunction against the law, saying there was a “substantial likelihood” that it violated the 1st Amendment. The U.S. Supreme Court agreed with Reed in 2004 when it ruled 5-4 in favor of the plaintiffs. But the high court didn’t completely kill COPA in the ruling, which ordered a trial where the government could make the case that the law is a reasonable restriction on free speech or that the use of filters was a less restrictive alternative that could save the law.

The case is expected to run until the end of November, with a ruling expected some time after that.