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CongressLine - The Child Online Protection Act: Decency and the Internet Revisited

By Carol M. Morrissey, Published on January 15, 1999

What is harmful to minors

The new legislation places a prohibition on the commercial distribution over the Web of material that is harmful to minors. The crafters of COPA believe their bill is much narrower in scope than the original CDA for several reasons. The standard is no longer one of "decency" but is now that which is "harmful to minors" and it does not attempt to regulate e-mail or chat rooms, just the Web. Most importantly, the bill directs commercial Web site operators to screen out this harmful material so that minors cannot have access. (Please go to: http://www.house.gov/oxley/nwmay4.htm for the text of Rep. Oxley's press release upon the introduction of COPA.)

On September 9, 1998, the subcommittee on Telecommunications Trade and Consumer Protection of the committee on Commerce held a hearing entitled, "Legislative Proposals to Protect Children from Inappropriate Materials on the Internet" at which several members of Congress, the Administration and trade associations testified. Please go to these hypertext links to locate the testimony of the following individuals: Sen. CoatsRep. Franks; Rep. Ernest J. Istook Jr.; Mr. Stephen R. Wiley - FBI; Mr. Jerry Berman - Center for Democracy and Technology; Mr. Jeffrey J. Douglas - Free Speech Coalition; Mr. Laith Paul Alsarraf - Cybernet Ventures, Inc., and Dr. Mary Anne Layden - University of Pennsylvania, Center for Cognitive Therapy.

A few days later, the subcommittee approved the bill and it was ordered reported by the full committee on September 24, 1998. (Please go to: http://www.epic.org/free_speech/censorship/hr3783-report.html.) It passed the full House as amended on October 7, 1998 and then, with the end of the session and elections looming larger than life before the Members, it was slipped into the omnibus-spending package. (For the text of the triumphant press release by the House sponsors, please see: http://www.house.gov/commerce/releases/pr101598.htm.)


Rep. Oxley's press release upon the introduction of COPA

Child Online Protection Act Report

Press Release from the House Sponsors

Initial complaint asking for an injunction

Request for a Temporary Restraining Order

TRO issues by Judge Reed

DOJ letter sent to Rep. Bliley

 

Free Speech Issues

Which brings us back to federal district court in Philadelphia on the morning of October 22, 1998. Having been through the motions once before, civil liberties groups were prepared for their challenge to this latest assault on the constitution and free speech. Proclaiming that it is a fundamental First Amendment right that one cannot limit adults to speech suitable for children, the American Civil Liberties Union, the Electronic Privacy Information Center, the Electronic Frontier Foundation and others filed papers seeking an injunction against the newly minted law, hoping to prevent it from going into effect at the end of November. (For the press release issued by the ACLU, please go to: http://www.aclu.org/news/n102298a.html.)

Not surprisingly, on November 19, 1998, Judge Lowell Reed issued a temporary restraining order (TRO) barring enforcement of the law, ruling that the plaintiffs have shown a "likelihood of success on the merits of at least some of their claims" that COPA violates the first amendment rights of adults. Although the TRO was initially set to expire on December 4, 1998, it has been extended to Feb. 1, 1999 to allow the government more time to prepare their case. Hearings on the request to extend the TRO pending the outcome of the case will be held beginning on Jan. 20, 1999 and continuing through Jan. 22, 1999.

All of the documents in the case can be viewed at the following sites; the initial complaint asking for an injunction is at: http://www.epic.org/free_speech/copa/complaint.html, the request for a Temporary Restraining Order is at: http://www.epic.org/free_speech/copa/tro_brief.html. The TRO issued by Judge Reed on November 20, 1998 is at: http://www.aclu.org/court/acluvrenoII_order.html. Also, before the law was enacted, the U.S. Department of Justice sent a letter to the Rep. Bliley (R-VA), the Chairman of the House committee on Commerce, expressing their concerns as to the constitutionality of COPA. This letter can be viewed at: http://www.aclu.org/court/acluvrenoII_doj_letter.html.

Now we wait for the process to work its will. Since these events are taking place in the courts, they should not be affected by the political maelstrom, which is currently consuming the Capitol City. One can almost guarantee that if this current incarnation is held unconstitutional, we have not seen the last hurrah of legislating decency on the Internet. As Mark Twain once said, "Now suppose you were an idiot. And suppose you were a member of Congress.....but I repeat myself."