ACLU v. Reno, Round II: Rejecting Cyber-Censorship, Court Defends Online "Marketplace of Ideas"

February 1, 1999 12:00 am

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NEW YORK — Saying that a federal Internet censorship law would restrict free speech in the “marketplace of ideas,” a Philadelphia court today blocked Congress’ second attempt to censor the Internet.

The American Civil Liberties Union, which filed the lawsuit along with the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF), hailed the decision as a significant victory in “round two” of their fight against federal online censorship.

In granting a preliminary injunction against the “Child Online Protection Act,” Judge Lowell A. Reed, Jr., held that the groups are likely to succeed on their claim that the law “imposes a burden on speech that is protected for adults.”

The government now has 60 days to decide whether to proceed with a full trial or appeal the preliminary injunction. If the government appeals, the case will move up to the Third Circuit Court of Appeals.

Today’s ruling came after a six-day hearing at which the ACLU presented testimony from website operators who provide free information about fine art, news, gay and lesbian issues and sexual health for women and the disabled, and who all fear that the law will force them to shut down their websites.

“After listening to our clients describe their online speech, the court was clearly convinced that this new law would silence many voices on the Internet,” said ACLU attorney Ann Beeson, lead counsel in the case.

The law, passed by Congress last October, makes it a federal crime for commercial websites to communicate material considered “harmful to minors.” Penalties include criminal and civil fines of up to $150,000 for each day of violation and up to six months in prison if convicted.

In a 49-page opinion issued late today, the court listed 68 separate “findings of fact” to support its decision. The court considered evidence that COPA imposed technological and economic burdens on speakers, but concluded that ultimately the relevant inquiry is the “burden imposed on the protected speech, not the pressure placed on the pocketbooks or bottom lines of the plaintiffs.” (Emphasis in the original.)

Although Judge Reed acknowledged a compelling interest in protecting children, he found that the law was not effective because of the ability of minors to gain access to “harmful materials” on foreign websites, non-commercial sites, and other non-Web based sources.

Blocking or filtering technology that can be used by parents to block access to inappropriate content “may be at least as successful as COPA,” without imposing a burden on constitutionally protected speech, the Judge said.

Borrowing a quote from Justice Kennedy that “sometimes we must make decisions that we do not like,” Judge Reed nevertheless concluded that “the greater good” required a ruling to enjoin the law.

“Indeed,” wrote Judge Reed, “perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”

Concern for the First Amendment was in evidence throughout the decision, which began with the words, “Congress shall make no law …abridging the freedom of speech.”

“After six days of complicated testimony, this case came down to first principles,” said Christopher Hansen, a senior ACLU national staff attorney and member of the legal team. “In the marketplace of ideas, free speech is one thing you shouldn’t have to pay for.”

The 17 plaintiffs represented in ACLU v. Reno II 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;

ACLU attorneys in the case are Ann Beeson, Christopher Hansen and J.C. Salyer; and Stefan Presser, Legal Director of the ACLU of Pennsylvania. Christopher R. Harris, Michele M. Pyle, Douglas A. Griffin, Kate Bolger, and Anna Lincoln, participated as volunteer attorneys from the law firm Latham & Watkins in New York City; David Sobel of EPIC and Shari Steele of EFF were co-counsel.

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