Ashcroft vs. ACLU, 00-1293, deals with a challenge to the Child Online Protection Act (COPA), which Congress passed in 1998. The law, which is the subject of this essay, attempts to protect minors from exposure to Internet pornography by requiring that commercial adult websites containing "indecent" material that is "harmful to minors" use age-verification mechanisms such as credit cards or adult identification numbers.(Child)
An earlier version of the law -- the 1996 Communications Decency Act -- was struck down as an unconstitutional restriction of free speech when challenged by the ACLU; the 1998 version attempted to address the constitutional concerns by limiting its scope to commercial websites, and carving out an exception for material that has "serious literary, artistic, political or scientific value for minors." (Communications)
COPA makes adult website operators liable for criminal sanctions -- up to $50,000 in fines and six months in jail -- if children are able to access material deemed "indecent," by "contemporary community standards," for those under 16. This raises the sticky issue of what "community" should set the standard for the global world of the Internet.
No one has been prosecuted under COPA; the ACLU brought suit as soon as the law was passed, and a federal judge in Pennsylvania agreed to block enforcement. The Third Circuit upheld the injunction, ruling that COPA's reliance on community standards improperly allows the most conservative communities to dictate what should be considered indecent. The ACLU represents a number of plaintiffs who publish materials online, including an art gallery, Salon.com magazine, a bookstore, and the producer of a...
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...rmful to minors on the Web, Beeson responded: "There isn't any way to make it a crime to display material harmful to minors on the Web."
A decision from the Supreme Court is expected sometime in the spring of 2002. This case does not directly address the issue of how the community standards requirement applies to determining whether online material is obscene (speech that does not receive First Amendment protection) rather than merely indecent (harmful for minors but protected for adults). The court's ruling will nonetheless be significant in terms of the future of the "community standards" test for obscenity online.