ACLU Files Suit Challenging the Child Online Protection Act

(October 23, 1998)  The American Civil Liberties Union, and others, filed a lawsuit in U.S. District Court in Philadelphia on Thursday, October 22, challenging the constitutionality of the Child Online Protection Act.  The bill was a part of the Omnibus Appropriations Act for FY 1999 which President Clinton signed on Wednesday, October 21.

The complaint asks to have the statute declared unconstitutional as a violation of the Free Speech Clause of the First Amendment, and to have federal prosecutors enjoined from enforcing it.

The Child Online Protection Act, which is numbered HR 3783, is also known as both COPA and CDA II.  It replaces the broad Internet indecency ban contained in the the Communications Decency Act which the Supreme Court held unconstitutional last year.

The ACLU's lead attorney, Ann Beeson, stated that, "Whether you call it the 'Communications Decency Act' or the 'Congress Doesn't Understand the Internet Act,' it is still unconstitutional and it still reduces the Internet to what is fit for a six-year-old."

COPA bans distributing over the web to minors material that is harmful to minors.   However, it only applies to commercial distributors, it only applies to the web, and it allows distribution to anyone with a debit or credit card, adult access code, or similar mechanism.  The "harmful to minors" standard has been upheld by the Supreme Court in the past.

The basic prohibition is limited by several provisions.  First, only parties posting offending material are affected.  Anyone involved "in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person" is not affected by the statute.  The phone companies, AOL and other ISPs, and search engines would not be affected.  The statute specifically exempts any "telecommunications carrier", "Internet access service", and "Internet information location tool."

The statute also provides that material that is harmful to minors can be distributed to anyone with a credit card, adult access code, or digital certificate that verifies age.

The ban also only applies to distribution of material that is for commercial purposes.  The statute defines this as "engaged in the business of making such communications."  This in turn means that a person "devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities ..."

Despite the wording of the statute, the ACLU's complaint alleges that the statute permits commercial, but not non-commercial, distribution of material that is harmful to minors.   The Supreme Court generally offers less protection for speech which it considers commercial.

None of the Plaintiffs have yet been harmed or effected by the statute.  In fact, it does not take affect until 30 days after enactment.

The complaint is a massive 200 paragraph document.  It goes far beyond the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.  The first part looks like a press release.  It then proceeds with required allegations regarding parties, basis of federal jurisdiction, and facts of the case.  However, the details about the parties, their allegations of harm, and their legal arguments looks more like a summary judgment brief (absent citations to evidence), than an initial complaint.  The complaint also contains self-promotional information about the groups involved in this lawsuit.

The ACLU's complaint is clear in its requests: it wants the court to declare that COPA violates the First and Fifth Amendments of the United States Constitution, to preliminarily and permanently enjoin federal prosecutors from enforcing it, and to award the ACLU attorneys fees.

The large group of plaintiffs includes interest groups and others who are opposed to the statute on policy grounds.  It also includes some web publishers who believe that they might be publishing material that is harmful to minors, who do not want minors' access to be restricted, and do not want to be prosecuted or fined.

In addition to the ACLU, the set of Plaintiffs includes several major interest groups, such as the Electronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC).

The ACLU is the lead Plaintiff.  The ACLU is also supplying the same legal team that successfully handled the Communications Decency Act case, and which is currently handling (and winning) the Loudoun Library blocking software case.

The Plaintiffs' attorneys are Ann Beeson, Chris Hansen and J.C. Salyer of the ACLU, Shari Steele of EFF, and David Sobel of EPIC. The law firm of Latham and Watkins is assisting the ACLU in the case.

The statute's primary author is Rep. Mike Oxley (R-OH).  The main proponents of the bill include Rep. James Greenwood (R-PA), Rep. Thomas Bliley (R-VA), and Sen. Dan Coats (R-IN).  The bill was very popular in the Congress.  While the contents of the omnibus appropriations bill (which served as the vehicle for final passage of many Internet related bills) were being negotiated last week, Clinton's representatives quietly opposed COPA.  However, when Rep. Oxley went public with the debate, and the administration quickly and completely caved in.

Rep. Oxley, Rep. Greenwood, Rep. Bliley, and Sen. Coats issued a joint statement after the filing of lawsuit.  They wrote:

"We proudly stand behind the Child Online Protection Act.  COPA is the law of the land.  It has overwhelming support in Congress and with the American people.   It helps answer an important problem plaguing American families in a balanced and intelligent way."

"We remind the Department of Justice that COPA was duly considered and passed by Congress, agreed to by White House negotiators, and signed by President Clinton.  It has strong support for good reason.  It effectively addresses the deep public concern about children's needless exposure to graphic pornography.  We expect the Department to meet its obligation to vigorously enforce and to vigorously defend COPA."