WASHINGTON (BP)–The effort to protect children from pornography received a setback at the hands of a federal judge only days after gaining a victory in another court.
Federal judge Lowell Reed of Philadelphia blocked enforcement of the Child Online Protection Act Feb. 1, only four days after the First Circuit Court of Appeals in Boston upheld a federal law banning computer-enhanced images depicting, or appearing to depict, a minor engaged in sexual activity.
The Child Online Protection Act, adopted by Congress near the close of its 1998 session, was designed to block children under 17 from accessing pornography on the World Wide Web by forcing commercial distributors to remove free images and to require a credit card, personal identification number or adult access code in order to view sexually explicit material. It is common practice on the Web for pornography distributors to provide teaser images for free before requiring a credit card to see others.
In issuing a preliminary injunction against COPA, Reed said he regretted delaying “once again the careful protection of our children,” The Washington Post reported.
Websites should have the greatest possible protection “not because of the risk of driving certain commercial Web sites out of business but the risk of driving this particular type of protected speech from the marketplace of ideas,” Reed wrote, according to The Post. “[P]erhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”
The federal court decision followed by about 18 months a U.S. Supreme Court opinion striking down a similar law against on-line pornography.
“There is something seriously wrong with our legal system when it becomes next to impossible to protect innocent children from pornography,” said Will Dodson, public-policy director for the Southern Baptist Ethics & Religious Liberty Commission. Something is “very wrong with our hierarchy of values when freedom of speech is held in such a high regard that the lust of the flesh is given higher value than the moral welfare of innocent young souls,” Dodson said.
Enough Is Enough, an anti-pornography organization focused on making the Internet safe for children, said the decision was not surprising.
The American Civil Liberties Union, which leads a coalition challenging the law, “has very carefully whipped up hysteria and paranoia over this very reasonable law,” said Shyla Welch, Enough Is Enough’s communications director, in a written statement. “COPA gives the World Wide Web exactly the same First Amendment protection as print. The judge merely bought into the ACLU’s disgraceful fear-mongering.”
Opponents of pornography fared better in the First Circuit Court of Appeals, which overturned a decision in federal court in Maine striking down the Child Pornography Protection Act. The law targets pedophiles who use computers to change a harmless photo of a child into one that appears to show him engaging in a sexually explicit act.
“These counterfeit but apparently real images pose all of the same risks to real children as actual child pornography and could be used interchangeably by pedophiles,” said Bruce Taylor, president of the National Law Center for Children and Families, in a written statement responding to the ruling. “The government’s need to prohibit synthetic materials is just as great, since they are just as enticing to pedophiles and just as seductive to child victims.”
In an earlier case, the Child Pornography Protection Act was upheld at the federal-court level in California, but the Ninth Circuit Court is expected to rule soon on an appeal of the opinion.
The Child Online Protection Act was a new approach to Internet pornography after the Supreme Court ruled in 1997 the Communications Decency Act was unconstitutional. CDA, which was coauthored by Sen. Dan Coats, R.-Ind., and Sen. James Exon, D.-Neb., both since retired, prohibited the distribution through on-line computer services of “obscene or indecent” material to any person under 18. It also banned the depiction or description of “sexual or excretory activities or organs” that is “patently offensive,” according to community standards.
The Supreme Court ruled CDA violated “the First Amendment right of adults to make and obtain this speech.” CDA regulated a variety of zones on the Internet, from news groups to chat rooms to e-mail to the World Wide Web, which the high court found too expansive. The court also drew distinctions between commercial and noncommercial distributors.
Although he disagreed with the court’s ruling, Coats changed his strategy in 1998 by attempting to fashion his new bill to alleviate the justices’ concerns. He did so largely by targeting only commercial distributors on the Web. COPA also used the standard of material “harmful to minors” rather than the one used in CDA.
Rep. Mike Oxley, R.-Ohio, chief House sponsor of COPA, said in his floor speech last year more than 60,000 websites featuring sexually explicit material are available to children.
