Judge Issues Temporary Restraining Order in COPA Suit

(November 21, 1998)  U.S. District Court Judge Lowell Reed issued a temporary restraining order on November 19 which bars the Department of Justice from enforcing the Child Online Protection Act (COPA).  The bill, which was passed last month, is designed to protect children from being exposed to harmful material on the world wide web.   The American Civil Liberties Union is leading the legal challenge to the law.

COPA bans sending to minors over the web material that is harmful to minors.  It is intended to replace the much more broadly worded Communications Decency Act, which was held unconstitutional by the Supreme Court last year.  COPA allows websites to distribute pornography, but requires those websites which distribute material that is harmful to children to verify adult status through the use of credit cards, adult access codes, adult PIN numbers, or other technologies that may be developed in the future.  It employs the "harmful to minor" standard which has been upheld in the federal courts.

COPA was signed into law by President Clinton on October 22, 1998.  On the same day, the ACLU and others filed the Complaint which initiated this lawsuit.

Judge Reed ruled in his Order "that plaintiffs have shown (1) a likelihood of success on the merits of at least some of their claims, (2) that they will suffer irreparable harm if a temporary restraining order is not issued, and (3) that the balance of harms and the public interest weigh in favor of granting the temporary restraining order ..."

The Department of Justice, which is responsible for enforcing federal criminal statutes, is defending this lawsuit.  However, it is unclear how committed the Department is.  Anthony Sutin, a high ranking official at the DOJ, wrote a letter to Rep. Thomas Bliley on October 5 stating the DOJ's objections to the bill.

The letter stated that enforcing the protections contained in COPA would not be a high priority for the DOJ.

"The Department's enforcement of a new criminal prohibition such as that proposed in the COPA could require an undesirable diversion of critical investigative and prosecutorial resources ..."

The letter stated that "We do not believe that it would be wise ..." and it "would be particularly ill-advised ..."

The letter also argued at length that COPA is fraught with constitutional problems, and "would likely be challenged on constitutional grounds, ..."  It stated that:

"the COPA as drafted contains numerous ambiguities concerning the scope of its coverage. Such ambiguities not only might complicate and hinder effective prosecution; they also might "render [the legislation] problematic for purposes of the First Amendment" by "undermin[ing] the likelihood that the [bill] has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials.""

"We are very pleased with the court's initial ruling," said Marc Rotenberg, in a press release.  "Like the original CDA, this censorship law raises troubling implications for both free speech and privacy in the online world."   Rotenberg is Executive Director of the Electronic Privacy Information Center, which is both a plaintiff and co-counsel in the suit.

"This is an important first step," Barry Steinhardt, President of the Electronic Frontier Foundation, stated in a release.  "At least for now, speech on the Internet retains the strong constitutional protection that the Supreme Court said it deserved in the original ACLU v. Reno case."  The EFF is also a plaintiff and co-counsel in the case.

Judge Reed rejected the argument, advanced by the Department of Justice, that the restraining order should apply only to prosecutions of the named plaintiffs.

The next hearing in the case is scheduled for December 8 and 9, 1998.  The issue in that hearing will be whether to grant a preliminary injunction.

The complete list of plaintiffs is as follows: ACLU, A Different Light Bookstore, American Booksellers Foundation for Free Expression, ArtNet, The Blackstripe, Condomania, Electronic Frontier Foundation, Electronic Privacy Information Center, Free Speech Media, Internet Content Coalition (whose members include CBS New Media, Time Inc., The New York Times Electronic Media Company, C/Net, Warner Bros. Online, MSNBC, Playboy Enterprises, Sony Online and ZDNet), OBGYN.NET, Philadelphia Gay News, PlanetOut Corporation, Powell's Bookstore, RIOTGRRL, Salon Magazine, and Weststock.com