IP: CDA II -- Judge Reed defends the "Marketplace of Ideas"

[Dave Farber <farber () cis upenn edu>]

            Rejecting Cyber-Censorship,
            Court Defends Online
            "Marketplace of Ideas"
            Judge Reed's Decision

            Monday, February 1, 1999 
            NEW YORK -- Saying that a federal Internet censorship law would 
            restrict free speech in the "marketplace of ideas," a Philadelphia 
            court today blocked Congress' second attempt to censor the Internet. 
            
            The American Civil Liberties Union, which filed the lawsuit along 
            with the Electronic Privacy Information Center (EPIC) and the 
            Electronic Frontier Foundation (EFF), hailed the decision as a 
            significant victory in "round two" of their fight against federal 
            online censorship. 
            In granting a preliminary injunction against the "Child Online 
            Protection Act," the court held that the groups are likely to 
            succeed on their claim that the law "imposes a burden on speech that 
            is protected for adults." 
            The government now has 60 days to decide whether to proceed with a 
            full-scale trial or appeal the preliminary injunction. If the 
            government appeals, the case will move up to the Third Circuit Court 
            of Appeals. 
            Today's ruling came after a six-day hearing at which the ACLU 
            presented testimony from website operators who provide free 
            information about fine art, news, gay and lesbian issues and sexual 
            health for women and the disabled, who all fear that the law will 
            force them to shut down their websites. 
            "After listening to our clients describe their online speech, the 
            court was clearly convinced that this new law would silence many 
            voices on the Internet," said Ann Beeson, lead counsel on the case 
            for the ACLU. 
            The law, passed by Congress last October, makes it a federal crime 
            for commercial websites to communicate material considered "harmful 
            to minors." Penalties include criminal and civil fines of up to 
            $150,000 for each day of violation and up to six months in prison if 
            convicted. 
            In a 49-page opinion issued late today, the court listed 68 separate 
            "findings of fact" to support its decision. The court considered 
            evidence that COPA imposed technological and economic burdens on 
            speakers, but concluded that ultimately the relevant inquiry is the 
            "burden imposed on the protected speech, not the pressure placed on 
            the pocketbooks or bottom lines of the plaintiffs." (Emphasis in the 
            original.) 
            Although Judge Reed acknowledged a compelling interest in protecting 
            children, he found that the law was not effective because of "the 
            ability of minors to gain access to harmful materials on foreign 
            websites, non-commercial sites," and other non-Web based sources. 
            Blocking or filtering technology that can be used by parents to 
            block access to inappropriate content, "may be at least as 
            successful as COPA" without imposing a burden on constitutionally 
            protected speech, the judge said. 
            Borrowing a quote from Justice Kennedy that "sometimes we must make 
            decisions that we do not like," Judge Reed nevertheless concluded 
            that "the greater good" required a ruling to enjoin the law. 
            "Indeed," wrote Judge Lowell A. Reed, Jr., "perhaps we do the minors 
            of this country harm if First Amendment protections, which they will 
            with age inherit fully, are chipped away in the name of their 
            protection." 
            Concern for the First Amendment was in evidence throughout the 
            decision, which began with the words, "Congress shall make no law 
            ...abridging the freedom of speech." 
            "After six days of complicated testimony this case came down to 
            first principles," said Christopher Hansen, a senior ACLU national 
            staff attorney and member of the legal team. "In the marketplace of 
            ideas, free speech is one thing you shouldn't have to pay for." 
            The 17 plaintiffs represented in ACLU v. Reno II are: American Civil 
            Liberties Union (on behalf of all its members including Nadine 
            Strossen, Lawrence Ferlinghetti, Patricia Nell Warren, Mitchell 
            Tepper and David Bunnell); A Different Light Bookstore; American 
            Booksellers Foundation for Free Expression; ArtNet; The Blackstripe; 
            Condomania; Electronic Frontier Foundation (on behalf of all its 
            members including Bill Boushka, Jon Noring, Open Enterprises 
            Cooperative and Rufus Griscom) ; Electronic Privacy Information 
            Center; Free Speech Media, LLC; Internet Content Coalition; 
            OBGYN.NET; Philadelphia Gay News; PlanetOut Corporation; Powell's 
            Bookstore; RIOTGRRL; Salon Magazine; Weststock.com. 
            ACLU attorneys in the case are Ann Beeson, Christopher Hansen and 
            J.C. Salyer; Stefan Presser, Legal Director of the ACLU of 
            Pennsylvania; Christopher R. Harris, Michele M. Pyle, Douglas A. 
            Griffin, Kate Bolger and Anna Lincoln, as volunteer attorneys from 
            the law firm Latham & Watkins in New York City; David Sobel of EPIC; 
            and Shari Steele of EFF.