ACLU Ready for Second Supreme Court Battle Over Internet Censorship Law

May 21, 2001 12:00 am

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NEW YORK–The American Civil Liberties Union today welcomed Supreme Court review of Congress’ second attempt to censor free speech on the Internet, saying that constitutional flaws in the law are identical to the problems that led all nine Justices to void a similar law in a landmark 1997 ruling.

“”We welcome the opportunity to demonstrate to the Court that Congress has once again fundamentally misunderstood the nature of the Internet,”” said Ann Beeson, an ACLU attorney who is lead counsel in ACLU. v. Ashcroft, No. 00-1293.

“”How else can you explain a law,” Beeson added, “that makes criminals of our clients, who include the poet Lawrence Ferlinghetti, writers of sexual advice columns, and websites for a bookstore, an art gallery, and the Philadelphia Gay News, to name a few.””

The so-called Child Online Protection Act, also known as “”COPA,”” makes it a federal crime to use the World Wide Web to communicate “”for commercial purposes”” material considered “”harmful to minors,”” with penalties of up to $150,000 for each day of violation and up to six months in prison.

In striking down the law last summer, a federal appeals court in Philadelphia upheld a lower court finding that the 1998 law “imposes a burden on speech that is protected for adults.”

Although a district court found the law unconstitutional because it was impossible to verify the age of an Internet user, the appeals court found it unconstitutional because “”a ‘community standards’ test would essentially require every Web communication to abide by the most restrictive community’s standards.””

In other words, a Florida community’s objection to online nude images of Michelangelo’s statue of David would result in censorship for everyone Internet user in the country. That aspect of the law alone, the appeals court said, “”must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute.””

To date, the ACLU has successfully challenged every online “harmful-to-minors” law passed, including those in Michigan, New Mexico, New York and Virginia. Two other similar challenges await rulings in Arizona and Vermont.

“”Although Congress claims to have narrowed the law to address only material that is ‘harmful to minors,’ in our challenges to state versions of this law not one federal judge has ruled in favor of this unworkable approach,”” said Chris Hansen, ACLU senior staff attorney who is a member of the ACLU legal team challenging COPA.

The 17 plaintiffs represented in ACLU v. Ashcroft are: American Civil Liberties Union (on behalf of all its members including Nadine Strossen, Lawrence Ferlinghetti, Patricia Nell Warren, Mitchell Tepper and David Bunnell); A Different Light Bookstore; American Booksellers Foundation for Free Expression; ArtNet; The Blackstripe; Condomania; Electronic Frontier Foundation (on behalf of all its members including Bill Boushka, Jon Noring, Open Enterprises Cooperative and Rufus Griscom); Electronic Privacy Information Center; Free Speech Media, LLC; Internet Content Coalition; OBGYN.NET; Philadelphia Gay News; PlanetOut Corporation; Powell’s Bookstore; RIOTGRRL; Salon Magazine; and (Links to these websites can be found here.)

ACLU attorneys in the case are Ann Beeson and Christopher Hansen of the national office and Stefan Presser, Legal Director of the ACLU of Pennsylvania. Catherine Palmer, Christopher R. Harris, Michele M. Pyle, Douglas A. Griffin and Kate Bolger are volunteer attorneys from the law firm Latham & Watkins in New York City; David Sobel of Electronic Privacy Information Center and Shari Steele of Electronic Frontier Foundation are co-counsel.

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