Federal & State Laws Restricting Internet Content (1998 to
Topics in this section:
The "Child On line Protection Act" originated as bill H.R. 3783,
sponsored by Representatives Oxley and Greenwood. A similar bill, S. 1482 was sponsored by
Senator Coats (R-IN); it passed the Senate in 1998-JUL. The bills were referred to as
"CDA-II" by civil libertarians. A compromise bill was signed into law
on 1998-OCT-22. It creates a new federal crime (Title 47 of the
U.S. code, Section 231):
"Whoever, in interstate or foreign commerce, by means of the World Wide Web,
knowingly makes any communication for commercial purposes that includes any material that
is harmful to minors without restricting access to such material by minors pursuant to
subsection(c) should be fined not more than $50,000, imprisoned not more than 6 months, or
CPOA differs from the CDA in that it is directed against commercial sites on the Web.
It also specifies an "affirmative defense" if the Webmaster has
attempted to restrict access to minors by "by requiring use of a credit card,
debit account, adult access code, or adult personal identification number; or...by any
other reasonable measures that are feasible under available technology."
The U.S. Department of Justice expressed severe reservations concerning this
law when it was still a bill: 7
||The work load on the Department to administer the law would be very heavy. It would
divert effort from other initiatives "combating traffickers in hard-core child
pornography, in thwarting child predators, and in prosecuting large-scale and multi
district commercial distributors of obscene materials involving child pornography."
||"There are thousands of news group and Internet relay chat channels on which
anyone" would still be able to access pornography
||"...children would still be able to obtain ready access to pornography from a
myriad of overseas web sites" that would not be touched by the law.
||It would likely be challenged successfully on constitutional grounds.
||"Contemporary community standards" are difficult to difficult to
judge, because there are many communities involved: the community where the Web file
was created, the community where the ISP is located, the community where the jury judging the case sits, some virtual "'community'
in hyperspace", or some other community.
On 1998-OCT-22, a group of plaintiffs filed a case in the federal District Court in
Philadelphia. They represent "a broad range
of individuals and entities who are speakers, content providers, and users of the Web.
Plaintiffs include online magazines, booksellers, media companies, art vendors, and gay
and lesbian content providers." They ask that the law be declared
unconstitutional. The plaintiffs state in their court challenge that the law's "constitutional
flaws are identical to the flaws that led the Supreme Court to strike down the
Communications Decency Act...The effect of the [CPOA] Act, like the CDA, is to restrict
adults from communicating and receiving expression that is clearly protected by the
Constitution...The Act directly violates the First Amendment rights of plaintiffs, their
members and tens of millions of other speakers to communicate protected expression on the
Web. In addition, the Act violates the rights of millions of Web users to access and view
constitutionally protected speech, including the right to do so anonymously."
Ann Beeson of the American Civil Liberties Union Foundation commented: "Whether
you call it the 'Communications Decency Act' or the 'Congress Doesn't Understand the
Internet Act,' it is still unconstitutional and it still reduces the Internet to what is
fit for a six-year-old."
COPA is supported by many very conservative Christian groups: the American
Family Association, Christian Coalition, Concerned Women for America, Family Research
Council, Morality in Media, and National Coalition for the Protection of Children
& Families. 6 Christian Coalition Executive Director,
Randy Tate, congratulated the Senate for passing S. 1482: "Families across
America need this sensible legislation to make the World Wide Web family friendly.
Absolutely no one has the right to peddle pornography to our children. Just as our
children do not have access to pornography at the corner store, they should be protected
from smut on the information superhighway, penetrating their rooms at home."
The American Civil Liberties Union, and associated groups, won a
temporary restraining order against COPA on 1998-DEC-4, and an injunction on
Oral arguments began on 1999-NOV-4 before the Third Circuit Court of
Appeals, in Philadelphia, PA. The ACLU and 17 other groups and individuals
argued the unconstitutionality of the law. Ann Beeson, the ACLU lawyer in the
case commented: "Despite the government's claims that the new law is
aimed at only commercial pornography, we think the appeals court will agree with
Judge Reed's finding that the law restricts a broad range of speech that is
valuable for adults." She noted that sexual advice columns, discussion
boards on gynecology, and websites for a bookstore, an art gallery, and the
Philadelphia Gay News, among others would be at risk.
On 2000-JUN-22, the Third Circuit Court of Appeals upheld the
Children's Internet Protection Act (CIPA):
The latest efforts by the Federal government to censor the Internet are
the Children's Internet Protection Act (CIPA) and the Neighborhood
Internet Protection Act (NCIPA). They requires all schools and public
libraries who use federally-funded computers to at least start a program
aimed at eventually installing censorship software to block access by
children to certain web sites. It was passed as part of a major spending
bill, and was signed into law on 2000-DEC-21. 15 Although
billed as an "anti-porn" bill, it actually goes much farther and
attempts to ban visual material that is considered to be "harmful
to minors." This might be interpreted as including sex-ed
material placed on the web for teenagers. The American Library
Association executive board voted on 2001-JAN-17 to initiate legal
action to overturn the CIPA law. They believe that it is unconstitutional
and that it violates First Amendment rights. They state: "No
filtering software successfully differentiates constitutionally protected
speech from illegal speech on the Internet. Even the federal commission
appointed to study child safety on the Internet concluded filters are not
effective in blocking all content that some may find objectionable, but
they do block much useful and constitutionally protected information."
16 ALA spokeswoman, Larra Clark, said: "The
problem is that filters donít work. They canít differentiate between
constitutionally protected information and illegal information." 17
Others claim that filtering software has greatly improved in recent
years and is now capable of differentiating between pornographic sites and
those which merely discuss controversial topics, like human sexuality,
sexual orientation, minority religions, etc.
CIPA became effective on 2001-APR-20. Libraries were not required to
certify that they had conformed to the law until 2002-JUL-31. Lawsuits to
declare the law unconstitutional were launched by the American Library
Association (ALA) and the American Civil Liberties Association.
They were consolidated into a single lawsuit. According to the ALA: "The
three-judge panel held that 'we are constrained to conclude that the library
plaintiffs must prevail in their contention that CIPA requires them to
violate the First Amendment rights of their patrons, and accordingly is
facially invalid;' the three-judge panel sitting in the Eastern District of
Pennsylvania ruled Sections 1712(a)(2) and 1721(b) of the Children's
Internet Protection Act to be facially invalid under the First Amendment and
permanently enjoined the government from enforcing those provisions." 19
In 1998, the New Mexico governor signed into law: "Section 1(A), 1998
New Mexico Laws, Chapter 64, to be codified as Section 30-37-3.2(A) of the New
Mexico Statutes Annotated." It banned Internet material that may be
"harmful to minors." 12 Any material on the Web which
involves "nudity, sexual intercourse, or any other sexual conduct,"
and "indecency" was
criminalized. The scope of the law was far reaching. This web site, for example,
might be interpreted as violating the New Mexico law in its essays on the Satanic
Ritual Abuse hoax, religious and medical views on
masturbation, abortion access, etc. We have
dozens, perhaps hundreds of essays which describe religiously liberal beliefs
which many religious conservatives would find blasphemous or indecent....and
vice versa. The American Civil Liberties Union and many other groups
applied for an injunction that would suspend application of the law. A
three-judge panel of the Tenth Circuit Court of Appeals in Denver, CO
granted the injunction, stating that the "Plaintiffs are likely to
succeed on their claims that:"
||The law violates the 1st, 5th, and 14th
Amendments of the U.S. Constitution in a variety of ways.
||The government has not put forth a valid case that the law would "directly
and materially advance a compelling governmental interest." or that
the law "constitutes the least restrictive means of serving its
||It also violates the Commerce Clause of the U.S. Constitution "because
it constitutes an unreasonable and undue burden on interstate and foreign
commerce," and "because it subjects interstate use of the
Internet to inconsistent state regulations." Considering one of our
site's essays as an example: the text was composed in Canada, transferred to
a web hosting service in Pennsylvania and might be accessed by an individual
in New Mexico. The state law attempts to reach beyond the borders of New
Mexico and regulate commerce elsewhere in the U.S. and in a foreign country.
The ACLU commented that: "The state had argued that its law banned
only online material considered 'harmful to minors.' But as the appeals court
pointed out, that argument 'overlook[s] the basic point that what may be
'patently offensive...for minors'...may very well have social importance and not
be patently offensive for adults.' Indeed, the court noted, 'plaintiffs' speech
includes discussions of women's health and interests, literary works and fine
art, gay and lesbian issues, prison rapes, and censorship and civil liberties
In their rush to prevent access by their children to erotic and explicit sexual images,
parents may also block access to some badly needed sites. For example, they might install
software that prevents access to:
||all sites with sexual content: This might prevent their children from seeking
information on the use of condoms to prevent pregnancy or the transmittal of a sexually
transmitted disease (STD). A youth who decides to become sexually active might be
prevented from obtaining the information needed to preserve their health and
even save his/her life. It might also
prevent them from accessing Web sites (such as this one) which contain information on
sexual orientation. A gay son or lesbian daughter might feel a profound sense of
loneliness as they try to come to terms with their sexuality. Being able to surf the
Internet for support groups and information sites could give them the
support that they need to overcome thoughts of suicide. Access could literally save their life.
||sites describing new religious movements: Apparently, some censorship
software companies employ individuals without a great deal of religious knowledge to
scan the Internet, looking for sites to be banned. They might group all
Wiccan and other Neo-Pagan sites along with Satanism and consider them all to be dangerous
cults. At one time CyberPatrol had many dozens of benign home pages banned in this way. As
a result, youth may not have access to accurate information on religious minorities.
Parents need to be careful when installing and setting up censorship software, so that
they know exactly what is being censored.
Some censorship software providers are:
||"CyberPatrol," Microsystems Software, Inc., 600 Worcester
Rd., Framingham, MA 01701, Phone: 1-800-489-2001 or 508-879-9000, Fax 508-626-8515, E-mail
[email protected], Web-site www.microsys.com
||"CyberSitter," Solid Oak Software, Inc., PO Box 6826, Santa
Barbara, CA 93160, Fax 805-967-1614, E-mail [email protected]
||"Net Nanny," Trove Investment Corporation, Main Floor - 525
Seymour Street, Vancouver, B.C., Canada V6B 3H7. E-mail [email protected] Web-site www.netnanny.com/netnanny
||"SurfWatch," SurfWatch Software, 105 Fremont Avenue, Suite F,
Los Altos, California 94022, Phone: 415-948-9500, Fax 415-948-9577, E-mail
[email protected] or [email protected], Web-site www.surfwatch.com
Some public libraries are installing censorship software, and many be exposing
themselves to a constitutional challenge if access by adult users is also restricted.
Censorship software providers are a law onto themselves. Webmasters have no way of
knowing when their site or any part of their site is blocked. Some sites, like
Cyberpatrol, have a facility allowing webmasters to determine if any part of their domain
is blocked. But no company, to our knowledge, routinely informs webmasters that their site
has just been blocked. Our site has had two essays temporarily blocked: Cyberpatrol banned
our essay on Wicca, presumably because it
contained the word "Witch." Bess banned our essay on Satanic Ritual Abuse,
presumably because it included the word "Satanism." We have no way of
knowing which of our 1,000 or so essays have been blocked by which of the dozens
of available censorship companies.
The Goodparents web site includes "a discussion forum for parents,
reviews by parents of computer-related products, and tips for parents whose kids are
active online." They are at: http://www.goodparents.com
The Interactive Services Association (ISA) is the interactive industry's leading
trade association. Their web site is at: http://www.isa.net
"OutProud! is a non-profit organization, providing services both to
individuals and agencies for the benefit of gay and lesbian youth. They are at: 454 Las
Gallinas Avenue, Suite 261, San Rafael, CA 94903-3618. Phone: 415-499-0993, Fax
415-499-1013, E-mail [email protected], web-site is http://www.outproud.org
Jim Hill, "Hate case raises Internet free speech issues," CNN
Interactive, 1997-NOV-9 at http://cnn.com/TECH/9711/09/cyber.hate/index.html
(Believed to be a dead link)
Some groups working to maintain free speech on the Internet:
Groups working to restrict the Net are primarily Fundamentalist Christian organizations:
Letter: L. Anthony Sutin to Thomas Bliley, 1998-OCT-5, at: http://www.aclu.org/court/acluvrenoII_doj_letter.html
The text of the complaint is available at: http://www.aclu.org/court/acluvrenoII_complaint.html
A complete plaintiff list is available at: http://www.aclu.org/court/acluvrenoII_plaintiffs.html
"Children, Pornography and Cyberspace: The Problem, Solutions & the Current
Congressional Debate," by the National Coalition for the Protection
of Children & Families.
"Definitions of Pornography, Obscenity and Indecency,"
in Media, at: http://pw2.netcom.com/~mimnyc/obscporn.htm
- American Civil Liberties Union Newsfeed, 1999-NOV-5.
A copy of the decision by the Tenth Circuit Court of Appeals is at:
The Electronic Privacy Information Center maintains a very complete
collection of legal documents and press releases on COPA at: http://www.epic.org/free_speech/copa/
"Welcome to ALA's CIPA web site," at: http://www.ala.org/cipa/
"American Library Association votes to challenge CIPA,"
"ALA to challenge Internet porn law," Focus on the
Family, at: http://www.family.org/cforum/fnif/news/A0014616.html
"COPA ('CDA II') legal challenge page," Electronic
Frontier Foundation, at: http://www.eff.org/pub/Legal/Cases/ACLU_v_Reno_II/
"Litigation decided by Third Circuit," American Library
Text of the American Library Association v. United States," U.S.
District Court for the Eastern District of Pennsylvania, 2002-MAY-31, at:
http://www.ala.org/ This is a PDF file. You may require software to read it. Software can be obtained free from:
Copyright © 1996 to 2005 by Ontario Consultants on
Latest update: 2005-JUN-18
Author: B.A. Robinson