By Norman Oder

• Credit card verification for "harmful to minors" material deemed overbroad
• Filters, says ACLU, are a better solution
• ALA sibling FTRF joined in amicus brief

The Child Online Protection Act (COPA), which would have required web sites with “harmful to minors” material to require age verification via credit card, has been struck down again. The U.S. Circuit Court of Appeals for the Third Circuit on Tuesday upheld (ruling) a March 22, 2007 ruling by a lower court ban on COPA, which was passed in 1998 but never enforced. 

COPA was seen as a narrower version of the 1996 Communications Decency Act (CDA), which was found unconstitutional; Congress in 2000 passed the Children’s Internet Protection Act (CIPA), which ties filtering at schools and libraries of child pornography, obscenity (and for minors) “harmful to minors” material to the receipt of E-rate telecomm discounts.

The appeals court upheld the District Court’s conclusions that COPA is not narrowly tailored to advance the government’s compelling interest in protecting children from harmful material on the World Wide Web; that there are less restrictive, equally effective alternatives to COPA; and that COPA is impermissibly overbroad and vague. COPA would have imposed penalties of up to $50,000 per day and up to six months in prison, for violations.

The American Civil Liberties Union (ACLU) represented several plaintiffs, including the online magazine Salon.com; the Sexual Health Network, which operates sexualhealth.com; Philadelphia Gay News; and Aaron Peckham, who owns UrbanDictionary.com. The Freedom to Read Foundation, a sibling to the American Library Association, filed an amicus brief supporting the plaintiffs.
 
Filtering better
Interestingly enough, the ACLU, which has opposed mandatory filtering, argued in this case that the voluntary use of filtering and blocking technology are a more effective and less restrictive way to shield minors from harmful materials than COPA. In the ruling, the appeals court noted that the federal government argued that “COPA is narrowly tailored because it applies only to commercial pornographers and only to material that is harmful to ‘older’ minors.” However, there’s nothing in the law’s text to indicate that, the court said.

The government also likened the age-verification system to “blinder racks” at a magazine stand. However, the court said, “Blinder racks do not require adults to pay for speech that otherwise would be accessible for free, they do not require adults to relinquish their anonymity to access protected speech, and they do not create a potentially permanent electronic record.”

The appellate court agreed that filters and the government’s promotion of them is a more effective strategy, noting that filters, for example, apply to adult material from web sites outside U.S. borders. “Moreover, filters are more flexible than COPA, because parents can tailor them to their own values and needs and to the age and maturity of their children,” the court said. “At oral argument, the government made much of a study that found that only 54 percent of parents use filters. But the government has neglected the fact that this figure represents a 65 percent increase from a prior study done four years earlier….”

What about using both? “During oral argument, the government contended that the First Amendment does not prohibit Congress from adopting a ‘belt-and-suspenders’ approach to addressing the compelling government interest of protecting minors from accessing harmful material on the Web, with filters acting as the ‘belt’ and COPA as the ‘suspenders,’" the court said. "But as counsel for plaintiffs correctly pointed out, under the First Amendment, if the belt works at least as effectively as the suspenders, then the government cannot prosecute people for not wearing suspenders.”

The ACLU was pleased. "Our clients provide valuable and necessary health and news information. Preventing adults from accessing this information under the guise of protecting children is not permissible," said Aden Fine, senior staff attorney with the ACLU First Amendment Working group. "There are more effective, less intrusive tools available to limit what minors can access on the Internet."