"
However surprisingly, there have been arguments for pornography and have stated that it encourages experimentation with new media and any act to censor it would go against the First Amendment which has not only intellectual, moral, political, and artistic value, but practical and economic value as well. It is believed that the First Amendment supports accepting adults, unrestrained by censorship, to search for innovative ways to use new media and find inventive ways to make money. Another reasonable argument is that censoring the Internet will only lead to complacency on the part of the parents who ought to be the first responsible censors of any unsuitable material. With no regulation by the government and the potential dangers of the Internet around, they will be forced to become computer-literate. A healthy discussion between parent and child on these matters is also expected, something which otherwise would probably be swept under the carpet. [Johnson, 1996]
The Child Online Protection Act
The Child Online Protection Act (COPA) was drafted by the Congress in response to Supreme Court ruling on the first ACLU. This Act came as part of the Omnibus Appropriations Act for Fiscal Year 1999, which President Bill Clinton signed into law on October 21, 1998. The basic definition of the COPA was as follows:
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." [Author unknown, n.d.]
This act, which had a narrower approach compared to the CDA, was proposed to amend section 223 of the Communications Act of 1985 and be codified at 47 U.S.C. 231.86 the House of Representatives Commerce Committee stated in its report that the COPA "has been carefully drafted to respond to the Supreme Court's decision in [first ACLU case]." The COPA prohibited "knowingly and with knowledge of the character of the material... By means of the World Wide Web, mak[ing] any communication for commercial purposes... available to any minor... that includes any material that is harmful to minors...."
This act was to apply to Web communications and even in that case, only to communications used for commercial purposes. Also, it was to apply to communications that are harmful to minors unlike the CDA that contained application against indecent and patently offensive standards. However, the act was similar to the CDA in the sense that it consented defenses that were carried out in good faith, including "requiring use of a credit card, debit account, adult access code, or adult personal identification number;... accepting a digital certificate that verifies age; or... other reasonable measures that are feasible under available technology."
But again, the unconstitutionality of the COPA was challenged when the ACLU, along with sixteen other plaintiffs, filed a lawsuit against Attorney General Janet Reno in the U.S. District Court, for the Eastern District of Pennsylvania, on October 22, 1998, alleging that the COPA is unconstitutional under the First and Fifth Amendments. The allegations of the plaintiffs included that the COPA violated the First Amendment because it infringed upon the protected speech of adults and older minors and also that the Act violated the Fifth Amendment because it is unconstitutionally vague.
Then, on November 20, 1998, a temporary restraining order was granted by the district court to the plaintiffs' motion, and on February 1, 1999, the court granted the plaintiffs' motion for a preliminary injunction. However, despite the injunction, many commercial pornography Web sites began complying with the COPA.
There were many reasons for the constitutional failure of the COPA. Some of these failures are listed below [Miller, 1999]:
Probably the most important reasons for failure was the fact that there was no proper method of segregating minors and adults in cyberspace and hence the COPA's "harmful to minors" definition could not be readily adapted. It has also been noted that the definition itself was flawed.
Another ambiguity that the definition of "harmful to minors" brought in was that it did not mention how the community standards that required to be "taken as a whole" would apply in the Internet medium.
The first economical angle to the challenging of the Act came from the fact that its affirmative defenses were not economically and technologically available to many of the affected Web sites. Also, the definition of "commercial purpose" was so vast that it covered many web sites that could...
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