A federal court in Philadelphia today declared unconstitutional a law that requires commercial pornography Web sites to deny access to children, a ruling pro-family groups called “troubling.”
Congress passed the Child Online Protection Act (COPA) in 1998 to force porn sites to hide harmful images behind an age-verification system. The law was immediately challenged and has been embroiled in a legal battle since – and therefore unenforceable.
In today’s ruling, Judge Lowell Reed, taking his cue from prior Supreme Court rulings, found the law to be “overbroad” and determined that filtering was far superior to COPA. While Reed acknowledged that "protecting minors from exposure to sexually explicit material on the World Wide Web is a compelling interest,” he found that COPA "suppresses a large amount of speech that adults have a constitutional right to receive."
Bruce Hausknecht, judicial analyst for Focus on the Family Action, had strong words for the court.
“The court can't push Congress' duties to protect kids from commercial pornographers back onto the parents simply by pointing out the filters are somewhat effective at blocking harmful content,” he said. “Should Congress abandon its ‘compelling interest’ in this area merely because parents have some responsibility there as well? And how do filters protect minors when they are outside the home -- are parents supposed to follow their kids around all day?"
Daniel Weiss, senior analyst for media and sexuality for Focus on the Family Action, pointed to a University of New Hampshire study just released in the Journal of Pediatrics.
“It found that 42 percent of kids had been exposed to pornography online in just the past year. That’s just in a one-year time period,” he said. “So kids are getting exposed at alarming rates and harmed by this material, yet this judge thinks that somehow Congress didn’t write the law properly.”
In fact, Congress wrote the law specifically to address the concerns the Supreme Court had in an earlier case, Weiss said.
“I think this judge is starting to make clear no law is going to be good enough for these courts,” he lamented.
Reed also stated in the ruling that no age-verification system to date has proven adequate to the task, a shortcoming Weiss said the government could fix.
“There’s no market for an age-verification system because the pornographers don’t want it,” he said. “As soon as you enforce the law, the market will correct that immediately.”
Robert Peters, president of Morality in Media, reacted harshly to today’s court decision.
“More than a decade has now passed since Congress first acted to protect children from Internet pornography,” he said, “and there are still no enforceable laws that require persons who commercially distribute pornography on the Internet to take reasonable steps to restrict children’s access.”
Laws protect children from accessing pornography in an adult bookstore, he said, but “when it comes to cyberspace, the federal courts think it is up to parents” to protect their kids.
Hausknecht said it could be another two or three years before the appeals process produces a final outcome in the case.
“If we want anything accomplished soon, Congress better redraft COPA yet again,” he said, “and attempt to meet the objections to it that the court raised.”
FOR MORE INFORMATION
Bruce Hausknecht, judicial analyst for Focus on the Family Action, offers below his analysis of the events that led to today’s COPA ruling.
Most Americans understand the concept that "free speech" is not absolute. For example, there is the famous example of not being able to yell "Fire!" in a crowded theater. Another exception is obscenity. Although the Supreme Court has struggled over the years to define the constitutional boundaries between protected speech and obscenity, the standard that has been in place since 1973 was announced by the Court in Miller v. California:
The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic political or scientific value.
Earlier, in 1968, in Ginsberg v. New York, the Court applied an even lower obscenity standard for minors. Meaning, the government can prohibit material going to minors that it couldn't prohibit if directed to adults.
Congress has been mindful of those cases and the differing standards for minors in its attempts to protect minors from online porn. The first attempt, the Communications Decency Act, passed in 1996, was struck down by the Supreme Court in the 1997 case of Reno v. ACLU because the act was overbroad, punishing the publishing of online materials that would not be "obscene" for adults, even if it were "obscene" by the lower standard for minors.
In response, Congress in 1998 passed COPA and attempted to address the deficiencies the Court found in the CDA by limiting the scope of the law to "commercial purposes," and to material labeled as "harmful to minors" rather than the more general label "obscene."
COPA was attacked immediately, and an injunction issued to prevent its enforcement in 1998. The 3rd Circuit upheld the injunction, calling parts of the law "overbroad." The Supreme Court then found the 3rd Circuit's reason insufficient, and sent the case back down (the law remained blocked during all this). The 3rd Circuit again found parts of the statute unconstitutional and upheld the injunction. In 2004, the Supreme Court affirmed the 3rd Circuit in Ashcroft v. ACLU, ruling that parts of the law were likely to be unconstitutional. That decision said that "filtering" was superior to the mechanism of COPA for protecting minors. Thus, the case was sent back to the original trial court with the injunction still firmly in place. That trial was then conducted, and today's decision from the federal district court is the outcome of that trial.
The trial judge, taking his cue from the Supreme Court, found the law to be overbroad, and that filtering was far superior to COPA. The judge, Lowell Reed, acknowledged, "Protecting minors from exposure to sexually explicit material on the World Wide Web is a compelling interest." However, he found that COPA "suppresses a large amount of speech that adults have a constitutional right to receive."
