US internet service providers, newspaper publishers, journalists and book publishers have joined together to lobby the US Court of Appeal. They are asking the court to find an anti-pornography law unconstitutional.
The Child Online Protection Act (COPA) has never come into force despite having been passed in 1998 because its constitutionality was challenged on the day it was signed into law.
The American Civil Liberties Union (ACLU) filed that objection in 1998, and the case reached the Supreme Court in 2002, when part of it was upheld and the rest sent to a lower court for reconsideration.
A Pennsylvania court found that the law was unconstitutional earlier this year, and the Attorney General has appealed that ruling to the Court of Appeal.
The Center for Democracy and Technology (CDT) has gathered a collection of industry lobby groups in the journalism, publishing and ISP industry to support the striking down of the law in the appeal.
“None of the amici [bodies supporting the action] are engaged in the business of “commercial pornography,” yet content-providing amici nevertheless are concerned that the speech with sexual content that they produce, distribute, use as teaching aids, and otherwise provide access to via the World Wide Web stands at risk of challenge under the Child Online Protection Act,” said the objection filed by the CDT.
“Service-providing amici fear that their ability to provide online forums for and access services to lawful speech will be restricted by COPA. This fear is hardly unfounded, as COPA applies on its face to any Web site that, in the regular course of business, communicates any material that is harmful to minors – whether or not it constitutes commercial pornography.”
“Thus, the government’s contention that COPA is limited to “commercial pornographers finds no support in the statute and affords no protection to amici’s constituents,” it said.
The groups represented by the objection include: the Newspaper Association of America; the Online Publishers Association; the Society of Professional Journalists; and the United States Internet Service Provider Association.
COPA creates an offence of allowing indecent material to be viewable by children without protection, such as the need for a credit card which would prove a use to be over 18 years' old. It makes website operators liable for fines of $50,000 per day that material is accessible and up to six months in jail.
The objection claims that the law could be used to punish the operators of library websites containing books on sexuality; web retailers selling songs or videos containing sexual content; operators of chat rooms where swearing takes place, or newspaper sites which provide links to websites containing sexual health advice.
The objection argues that there are other methods for protection children from viewing certain material which do not pose a risk to the free speech of publishers.
“There are less restrictive alternatives that are more effective than COPA at protecting minors from inappropriate content,” it said. “COPA is ineffective as it does not, and probably could not effectively, apply to overseas content, and COPA is overbroad in that it applies to Web sites that include any commercial activity, such as advertising, which sites of many not-for-profit entities do.”
The objection said that control technology such as internet filtering as well as non-technological measures such as education programmes could protect children just as well without the same problems.