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Federal appeals judges express concern over COPA

The Associated Press

11.05.99

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PHILADELPHIA — A federal law aimed at protecting children from online pornography will have a chilling effect on free speech and should be struck down, lawyers told an appeals court yesterday.

The Child Online Protection Act, the second major effort by Congress to protect children on the Internet, would require commercial Web sites to collect a credit card number or some other access code as proof of age before allowing Internet users to view online material that is "harmful to minors."

The American Civil Liberties Union challenged the law on behalf of 17 clients, claiming it violates the First Amendment's free-speech guarantees and could be used to unfairly prosecute gays and lesbians, AIDS activists or doctors distributing gynecological information.

Ann Beeson, an ACLU lawyer, told a three-judge panel of the 3rd U.S. Circuit Court of Appeals that the government has a "compelling interest" in protecting children from pornography, but the Child Online Protection Act is too vague and could have the effect of hindering constitutionally protected speech.

Last February, a judge issued a preliminary injunction to block the law from being enforced. The 3rd Circuit must now decide whether to affirm the ruling or allow the law to take affect.

During oral arguments yesterday, two of the judges expressed concern about a provision of the law that defines material harmful to minors as something that an average person, applying contemporary community standards, would find is designed to appeal to the "prurient interest."

Judge Leonard Garth said that because the World Wide Web is a global medium, the law might necessarily apply to the most conservative communities.

"The fact that protected material can be kept from adults depending on which way you read the statute is not a particularly happy result," he said.

The law's supporters say the measure is a sensible way to keep Internet pornography away from children. Unlike the Communications Decency Act of 1996, the new law applies only to commercial Web sites. The Supreme Court struck down two major provisions of the CDA.

"Parents are entitled to government support in shielding their children from material that is harmful to minors," Justice Department lawyer Jacob Lewis told the panel.

The Justice Department argued that the law would act as a "brown paper wrapper" protecting children from pornographic material. It also said the law would not apply to general-interest Web sites like Salon, an online magazine that is one of the plaintiffs in the suit.

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