Landmark Online Free Speech Trial Wraps Up on Monday, November 20

PHILADELPHIA – On Monday, November 20, following a four-week trial, the American Civil Liberties Union will present concluding arguments in federal district court in its longstanding challenge to an Internet censorship law. The censorship law was signed by President Clinton in 1998 and has never been enforced.

“Since Congress passed this law, the Internet has changed and it is now clear that this harsh, criminal law won’t come close to achieving its goals,” said Chris Hansen, a senior staff attorney with the ACLU. “It is also clear that other alternatives, including education and filtering, are far more effective for those parents who want to limit access by their children to certain websites using their own values.”

At issue in ACLU v. Gonzales is the “Child Online Protection Act” (COPA), which would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as valuable for adults but judged “harmful to minors.”

The law is aimed at protecting minors from harm on the Internet. But as the ACLU showed during the trial, Internet filters would be far more effective at blocking sexually explicit Web sites.

In a study commissioned by the government as part of its defense, experts estimated that 1.1 percent of Web sites cataloged by search engines such as Google and MSN are sexually explicit. But the ACLU pointed out that the study bolstered arguments against government censorship, because approximately one half of those sites are housed overseas, where U.S. laws don’t apply. In addition, according to the government’s own expert, America Online’s filter blocks more than 98 percent of all sexually explicit sites.

During the first two weeks of the trial, the ACLU presented evidence from a broad range of Internet speakers including online magazines, an online dictionary, rap artists, painters and video artists, providers of safer sex information and writers. Attorneys argued that the censorship law directly violates the First Amendment rights of the ACLU’s plaintiffs and tens of millions of other speakers to communicate protected expression on the Internet.

Previously, a federal district court in Philadelphia and a federal appeals court found the online censorship law unconstitutional, and the Supreme Court upheld the ban on enforcement of the law in June 2004. The Justices, however, also asked the Philadelphia court to determine whether there had been any changes in technology that would affect the constitutionality of the statute, such as whether commercially available blocking software was still as effective as the banned law in blocking material deemed “harmful to minors.”

COPA represents Congress’ second attempt to impose severe criminal and civil sanctions on the display of protected, non-obscene speech on the Internet. A first attempt, the Communications Decency Act of 1996, was declared unconstitutional by all nine Justices of the Supreme Court in Reno v. ACLU.

“The constitutionally protected right to freedom of speech applies to all mediums of communication, including the Internet,” said Hansen.

The legal team in the case includes Hansen, Aden Fine, Ben Wizner and Catherine Crump of the national ACLU and attorneys with the law firm Latham and Watkins, which has been working with the ACLU on Internet censorship battles since 1998.

The case is before Senior Judge Lowell A. Reed, Jr. The docket number is 2:98-CV-05591-LR. A ruling is expected in the next few months.

Daily transcripts of the proceedings and blogging by ACLU attorneys and others, as well as legal papers, a list of the plaintiffs and other case background, is available online at www.aclu.org/onlinefreespeech