Free Speech and Porn

Written by Brett Thomas

March 23, 2007 | 10:44

Tags: #court #federal #porn

How appropriate that this should come right after my five-page long treatise on rating games.

A US Federal Court judge has issued a block on the law demanding that porn sites shield their content from the eyes of minors or be charged with a crime. The law, called the Child Online Protection Act (COPA), came into effect in 1998 in an effort to protect minors from the flood of sexually-oriented sites that came into being shortly after the real public acceptance of the internet.

In order to comply with COPA, a site was required to have certain measures of age verification if the content could be viewed as "harmful to minors." If protection methods were not present, the site would be in violation and liable both civilly and criminally. Penalties included an up to $50,000 fine and/or up to six months in jail depending on the offense

The law was challenged in court last fall by several sites including Salon.com, several sexual health sites and a host of other websites all backed by the American Civil Liberties Union. It was not challenged so much as to its purpose but as to its methods - it was argued that the law was "vaguely written" and could have a "chilling effect" on free speech. The trial lasted four weeks, and Judge Lowell Reed Jr. finally gave his opinion on Thursday.

"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," Judge Reed wrote. He outlined in his decision that parents have "adequate means" to protect their children from harmful sites if they so desired, including software-based content filters like NetNanny. These protections allow each household to determine what is enough protection for its minors without having an effect on the free speech of everyone else.

Lawyers for the US Government, in defense of COPA, argued that software based filters and other protective measures were a hindrance and difficult to operate. This is actually the reverse of the stance that they took shortly before the bill was signed into law, where they argued (and won) a case for including such software in public schools and libraries. "It is not reasonable for the government to expect all parents to shoulder the burden to cut off every possible source of adult content for their children, rather than the government's addressing the problem at its source," one of the attorneys said in a brief after the verdict.

The law had already had an injunction placed against it in 2004 by the US Supreme court, which stated that it could be unconstitutional at worst or outdated at best. However, the ambiguity of its continued existence has meant that many sites have simply chosen to comply with it anyhow. After all, COPA sure beat the 1996 attempt by Congress to ban all internet pornography hosted in the USA!

Do you have a thought on either COPA or the judge's recent ruling? Tell us about it in our forums.
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