U.S. Judge Rules COPA Unconstitutional

Anne Winter
PHILADELPHIA — A federal judge today issued a permanent injunction against the enforcement of the Child Online Protection Act, a 1998 law that criminalized commercial website owners for making available online material considered harmful to minors.

The judge ruled COPA violated several constitutional amendments.

U.S. District Judge Lowell Reed Jr. ruled that COPA, which would have used "contemporary community standards" to determine material harmful to minors, is "impermissibly vague and overbroad."

"Perhaps we do the minors of this country harm if 1st Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," the judge wrote in the opinion.

Instead, the judge said voluntary, less restrictive means of blocking online content — specifically software filters — would be more appropriate and would not inhibit free speech rights.

"It makes it a voluntary decision to filter or not," adult industry lawyer Lawrence Walters told XBIZ, "as opposed to a mandatory law enforced at the publishing level. It's almost impossible to define which speech can be considered harmful to minors."

Walters said that "contemporary community standards," which could range from openly liberal to extremely conservative, might determine and unfairly prosecute owners of informational websites, such as those for breast cancer and sexual health.

COPA would have made violators subject to fines of up to $50,000 and imprisonment for up to six months.

Despite the ruling, Walters still urged adult webmasters to use age verification tools, and not just because "it's the right thing to do." He said that making free hardcore content publicly available "is asking for trouble in this industry."

"You're put in a better position when you try to keep [content] away from minors," Walters said. "Without [age verification], it makes it difficult to defend other claims, such as obscenity."

The case is ACLU vs. Gonzales, No. 98-5591.

A PDF of the decision can be read here.