It has become a familiar routine: The nation’s lawmakers — obsessed with sexual mores — expend considerable time and taxpayer dollars poring over sordid affairs — all to no avail. But we’re not talking impeachment here; we’re talking Internet — and the latest wave of popular but futile assaults on Web freedoms in the name of protecting minors.
The most recent effort to hit the First Amendment wall is called the Child Online Protection Act (COPA), an anti-pornography measure that was to take effect last November. A federal judge in Philadelphia stayed enforcement on constitutional grounds. Just as a judge had with the anti-pornography bill before that. And the one before that.
Under COPA, any Web site with a commercial component would have to go to considerable lengths to prevent minors from accessing “harmful” material. Business owners not in compliance would be subject to a fine of up to $150,000 per day and up to six months in jail.
What troubles groups such as the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation is COPA’s broad definition of harmful material, and of what constitutes a commercial Web site. In conservative jurisdictions, according to ACLU lawyers, a nonprofit gay- or lesbian-themed site that sells promotional T-shirts could be prosecuted under COPA. The ACLU also claims that the bill makes no allowance for material — such as safe-sex information — that might be considered inappropriate for very young Net surfers, but not for teenagers.
COPA’s not likely to cudgel violators anytime soon, though. On Monday, federal Judge Lowell A. Reed Jr. extended his original ruling that suspended enforcement of the law while the ACLU argues its case. The government has 60 days to file for an appeal or the matter will proceed to a full-blown trial. “This thing could very well proceed all the way to the Supreme Court,” said ACLU associate director Barry Steinhardt.
COPA is following a well-established pattern (see chart): Legislators pass Internet anti-porn bill; ACLU challenges; bill proceeds through judiciary system; bill is ultimately struck down. Yet lawmakers continue to send through Internet-targeted anti-porn legislation, despite the courts’ con-sistent rejection of such bills and the First Amendment restrictions they would codify.
“We have an unblemished record of defeating these laws,” said Steinhardt, who estimated that federal and state governments have spent millions of dollars defending Internet anti-porn laws in court.
COPA’s most immediate predecessor at the federal level was the Communications Decency Act, which the Supreme Court ruled unconstitutional in 1997. That bill sought to hold Internet service providers such as America Online criminally liable for allowing “indecent” material to pass through their systems. By contrast, COPA, the more recent bill, narrows its target to online businesses that actually traffic in material “harmful to minors.”
Both bills were sponsored by Senator Dan Coats (R-Ind.), who has since retired. By focusing more exclusively on porn providers, Coats has likened the new bill to “hunting with a rifle,” as compared to the shotgun approach of his earlier try.
Despite COPA’s misfire, another anti-porn bill is already in the works. Last week, Senators John McCain (R-Ariz.) and Ernest Hollings (D-S.C.) quietly introduced the Children’s Internet Protection Act. That bill would require schools and libraries that receive federal Internet-access subsidies to outfit computers with filtering software, despite strong evidence that such software also sorts out “legitimate” content along with porn. A federal district court struck down a similar law in Loudoun County, Virginia, last November.
Said ACLU staff attorney Ann Beeson in a press release, “Congress is obviously enjoying the free political ride these bills provide, with little thought for the taxpayers who will ultimately pay the price when the courts strike them down.”
An aide to Senator Hollings insisted that it’s unfair to characterize the Internet bills as political grandstanding. “We’re doing the right thing,” insisted communications director Maury Lane. “If there wasn’t a problem out there, [these laws] wouldn’t pass Congress so overwhelmingly.”
Of course, one reason for this broad support may be that legislators don’t want political opponents singling them out as friends to pornographers. Given that alternative, it becomes easier to claim the cheap political capital, even if the cost to taxpayers is anything but.
“I fully expect the Congress will keep passing legislation to regulate speech on the Internet,” said the ACLU’s Steinhardt. “They seem to have an inexhaustible supply of ideas.”