Federal & State Laws Restricting Internet Content (1998 to 2002)

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Topics in this section:

Child Online Protecion Act (CPOA):

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 both."

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

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." _8,9

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 1999-FEB-2. ₁₄

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 injunction. ₁₈

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 don’t work. They can’t 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

New Mexico law:

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 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 issues.'

A Potential Danger from Censorship Software:

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:

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:

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.

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