ACLU v. Reno II Victory!

Appeals Court Rejects Congress' Second Attempt at Cyber-Censorship FOR IMMEDIATE RELEASE

Thursday, June 22, 2000

PHILADELPHIA -- In a unanimous decision issued late today, a federal appeals court here struck down as unconstitutional Congress's second attempt to criminalize speech on the Internet

. The American Civil Liberties Union, which challenged the 1998 "Child Online Protection Act" on behalf of 17 groups and individuals, welcomed the decision and said the court's strong language should persuade the Justice Department and lawmakers to end wrongheaded attempts to regulate the unique medium of the Internet.

"We are deeply gratified that the court recognized the danger this law represented to our clients, who faced jail time and heavy fines for speech that is unquestionably protected by the Constitution," said Ann Beeson, one of the ACLU attorneys who argued the case before a three-judge panel last November.

"Clearly, the court is not satisfied with Congress's efforts in this area," Beeson added. "We now call on Congress and the Clinton Administration to close the book on this early chapter of Internet history and embrace free speech online as we have embraced it in every other significant communications medium."

The so-called "Child Online Protection Act," also known as "COPA," made it a federal crime to use the World Wide Web to communicate "for commercial purposes" material considered "harmful to minors," with penalties of up to $150,000 for each day of violation and up to six months in prison.

The speech at issue today, Beeson noted, included sexual advice columns, discussion boards on gynecology, and websites for a bookstore, an art gallery, and the Philadelphia Gay News, among others.

In its legal challenge to the Act, the ACLU said constitutional flaws in this law were identical to the flaws that led the Supreme Court to strike down the "Communications Decency Act," Congress's earlier attempt at Internet censorship, in a landmark 1997 ruling.

In their 34-page decision, the judges today upheld a lower court finding that the 1998 law "imposes a burden on speech that is protected for adults."

However, while the lower court based its finding on a variety of First Amendment flaws in the law, the ACLU noted, the appeals court today focused chiefly on the fact that it is impossible to establish one Ścommunity standard' by which Internet speech could be governed.

"Because of the peculiar geography-free nature of cyberspace," the appeals court wrote, "a Ścommunity standards' test would essentially require every Web communication to abide by the most restrictive community's standards."

The overbreadth of the 1998 law "so concerns us," the appeals court said, "that we are persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute."

Commenting on the particular focus of the appeals court's ruling, ACLU Senior Staff Attorney Chris Hansen, noted, "The district court found the statute unconstitutional because it was impossible to verify age. The court of appeals finds it unconstitutional because it is impossible to verify geography."

The government now has three options, Hansen said: it can admit defeat and let today's ruling stand; it can appeal the decision to the Supreme Court, which is not obligated to review it; or it can go back to the District Court and ask for a full trial.

ACLU challenges to state "harmful-to-minors" laws were successful in New Mexico and New York. Another case from Michigan was successful and is now on appeal.

The appeals court's decision today is online at
http://pacer.ca3.uscourts.gov:8080/C:/InetPub/ftproot/Opinions/991324.TXT

The case is ACLU v. Reno II, No. 99-1324. The three-judge panel of the Third Circuit Court of Appeals was comprised of Judge Theodore Alexander McKee, Judge Leonard I. Garth, and Judge Richard Lowell Nygaard.

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; and Weststock.com. Links to these websites can be found at
http://www.aclu.org/court/acluvrenoII_plaintiffs.html .

The ACLU's brief in the case is online at
http://www.aclu.org/court/acluvrenoii_motion.html .

ACLU attorneys in the case are Ann Beeson and Christopher Hansen of the national office and Stefan Presser, Legal Director of the ACLU of Pennsylvania. Catherine Palmer, Christopher R. Harris, Michele M. Pyle, Douglas A. Griffin and Kate Bolger are volunteer attorneys from the law firm Latham & Watkins in New York City; David Sobel of Electronic Privacy Information Center and Shari Steele of Electronic Frontier Foundation are co-counsel.

The 17 plaintiffs represented in ACLU v. Reno II are:

The American Civil Liberties Union (on behalf of all its members including Nadine Strossen, Lawrence Ferlinghetti, Patricia Nell Warren, David Bunnell and Mitch Tepper)
A Different Light Bookstore
The 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 (whose members include CBS New Media, Time Inc., The New York Times Electronic Media Company, C/Net, Warner Bros. Online, MSNBC, Playboy Enterprises, Sony Online and ZDNet)
OBGYN.NET
Philadelphia Gay News
PlanetOut Corporation
Powell's Bookstore RIOTGRRL
Salon Magazine
Weststock.com

FOR IMMEDIATE RELEASE

Wednesday, January 27, 1999 PHILADELPHIA-- With closing arguments concluded late Tuesday, Judge Lowell A. Reed, Jr. called lawyers for the government and the American Civil Liberties Union back into court today for a final "question-and-answer" session regarding the constitutionality of a new federal Internet censorship law. Judge Reed is expected to rule on whether to block the law by Monday, February 1, when a temporary restraining order he imposed against the law in November is scheduled to expire. The new law makes it a federal crime for commercial websites to communicate material considered "harmful to minors." Penalties include fines of up to $150,000 for each day of violation, and up to six months in prison if convicted of a crime. At the six-day hearing, the ACLU presented testimony from website operators who provide free information for artists, lesbian and gay men, and the disabled, who all fear that a new federal law will force them to shut down their websites. If the court issues a preliminary injunction, Internet speakers will remain safe from prosecution and fines and a full trial will be scheduled. The government will then have to decide whether it wants to pursue an appeal. The judge's ruling will be broadcast by the ACLU as soon as it is known. Check back at this site often. The ACLU's link image on the main page will flash a message once the court rules. For more information on the case, read the ACLU's January 20 news release, legal briefs, and other documents below.

FOR IMMEDIATE RELEASE

Wednesday, January 20, 1999
PHILADELPHIA-- At a three-day hearing opening this morning in federal district court, the American Civil Liberties Union is presenting testimony from website operators who provide information for artists, lesbian and gay men, and the disabled, who all fear that a new federal law will force them to shut down their websites. These witnesses, as well as experts on Internet commerce and marketing, are scheduled to appear before Judge Lowell A. Reed in the ACLU's challenge to a second Congressional attempt to censor online free speech. In June 1997, the Supreme Court unanimously struck down the nearly identical censorship provisions of the Communications Decency Act (CDA) in ACLU v. Reno. ACLU v. Reno II, as the new case is called, was filed by the ACLU, the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF) as co-counsel on behalf of 17 individuals and organizations. The new law, signed by President Clinton as part of the massive omnibus budget bill last October, makes it a federal crime for commercial websites to communicate material considered "harmful to minors." Penalties include fines of up to $50,000 for each day of violation, and up to six months in prison if convicted of a crime. In an affidavit filed with the court, Mitchell Tepper of Sexual Health Network said that he feared prosecution under the law because his website provides graphic information on sexual pleasure for people with disabilities or illnesses. Because the law contains no exception for material that has "educational" or "medical" value for minors, Tepper might have to censor his site for all visitors, including adults -- in effect shutting it down altogether. As the ACLU argued in legal papers, "There can be no serious dispute that when a law deprives adults of constitutionally protected speech, which by definition includes all of the speech at issue in this case, it is unconstitutional even if the purpose is to protect minors." Indeed, the ACLU argues, the government's own witness, Damon Hecker (scheduled to appear in the courtroom later this week) stated at his deposition that he believed some of the pictures on the websites of ACLU plaintiffs ArtNet and Condomania could be considered, in some communities, to be "offensive to minors and without redeeming social value." 12/08/98-UPDATE: The Temporary Restraining Order blocking the enforcement of the Child On-Line Protection Act has been extended, by consent of the parties, until Feb 1, 1999. Hearings on the request for a preliminary injunction are scheduled for Wednesday, January 20, through Friday, January 22, 1999.

On Thursday, November 19, 1998, a federal court in Philadelphia issued a temporary restraining order (TRO) temporarily blocking enforcement of the Child On-Line Protection Act (COPA or CDAII). The injunction applies to all Internet communications and expires in ten days (on Friday, December 4th). It will probably be extended until the next hearing. The next hearing in court is scheduled for December 8th and 9th. At that hearing, the plaintiffs (the ACLU, EFF, and others) will ask for a permanent injunction or a preliminary injunction to block the law until they can get a permanent injunction.

The law will have NO EFFECT until at least December 4th and probably until the hearing on December 8th and 9th. Even if the law is finally found to be valid, there will be no retroactive prosecution for acts committed while the TRO is in place. In other words, A Nude Cornucopia cannot be prosecuted under the act AFTER the TRO is lifted for things we do WHILE the TRO is in effect.

On November 21 an amendment to the Communications Act of 1934 was to prohibit A Nude Cornucopia from publishing our usual content and allowing free access to minors under 17 years old to view such material. In compliance with the law, We will institute: "Cyber Bouncer" that will issue passwords to gain access to A Nude Cornucopia to only those over 17. I'm afraid this will alienate many that visit here who are well over the prescribed age and do not have a credit card to prove that they are old enough to enter. Please read the following documentation of the new law and hopefully you will understand why we might be forced to implement the adult verification services in order for this webmaster to stay out of jail!

In Compliance with this ammended portion of the Communications Act of 1934

SEC. 231. RESTRICTION OF ACCESS BY MINORS TO MATERIALS COMMERCIALLY DISTRIBUTED BY MEANS OF WORLD WIDE WEB THAT ARE HARMFUL TO MINORS.

(a) Requirement To Restrict Access.-

(1) Prohibited conduct.--Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

(2) Intentional violations.--In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

(3) Civil penalty.--In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

(b) Inapplicability of Carriers and Other Service Providers.--For purposes of subsection (a), a person shall not be considered to make any communication for commercial purposes to the extent that such person is-

(1) a telecommunications carrier engaged in the provision of a telecommunications service;

(2) a person engaged in the business of providing an Internet access service;

(3) a person engaged in the business of providing an Internet information location tool; or

(4) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consistent with subsection (c) or section 230 shall not constitute such selection or alteration of the content of the communication.

(1) Defense.--It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors-

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

(B) by accepting a digital certificate that verifies age; or

(2) Protection for use of defenses.--No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this subsection or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.

(d) Privacy Protection Requirements.-

(1) Disclosure of information limited.--A person making a communication described in subsection (a)-

(A) shall not disclose any information collected for the purposes of restricting access to such communications to individuals 17 years of age or older without the prior written or electronic consent of-

(i) the individual concerned, if the individual is an adult; or

(ii) the individual's parent or guardian, if the individual is under 17 years of age; and

(B) shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the person making such communication and the recipient of such communication.

(2) Exceptions.--A person making a communication described in subsection (a) may disclose such information if the disclosure is-

(A) necessary to make the communication or conduct a legitimate business activity related to making the communication; or

(B) made pursuant to a court order authorizing such disclosure.

(e) Definitions.--For purposes of this subsection, the following definitions shall apply:

(1) By means of the world wide web.--The term `by means of the World Wide Web' means by placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol.

(2) Commercial purposes; engaged in the business.-

(A) Commercial purposes.--A person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications.

(B) Engaged in the business.--The term `engaged in the business' means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income). A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web.

(3) Internet.--The term `Internet' means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.

(4) Internet access service.--The term `Internet access service' means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.

(5) Internet information location tool.--The term `Internet information location tool' means a service that refers or links users to an online location on the World Wide Web. Such term includes directories, indices, references, pointers, and hypertext links.

(6) Material that is harmful to minors.--The term `material that is harmful to minors' means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that-

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(7) Minor.--The term `minor' means any person under 17 years of age.''

ACLU v. Reno II Victory!

Comments are always welcome!