PHILADELPHIA, PA -- Opening arguments and the first few days of a non-jury trial have commenced here in the latest episode of the long-running litigation over the "Child Online Protection Act" (COPA), which was enacted in 1998 but has never taken effect because it has been under court injunction ever since, after being twice ruled unconstitutional by the U.S. Third Circuit Court of Appeals and twice considered by the Supreme Court. COPA would impose criminal penalties for commercial Internet sites that contain “harmful matter,” unless credit cards or other age verification methods are used. In the most recent (2004) ruling by the Supremes, the high court left standing the injunction against enforcement of COPA, while at the same time keeping open the possibility that COPA might ultimately be upheld. This long history of litigation began when U.S. District Court Judge Lowell A. Reed, Jr. issued a preliminary injunction blocking the law in 1999. Said Judge Reed in that opinion: "[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.

Now Judge Reed presides once again, guided this time by the Supreme Court comments, over the latest incarnation of the legal battle in ACLU v. Gonzales. In the 2004 Supreme Court decision, Justice Kennedy, writing for a narrow 5-4 majority, said the government must show why the voluntary use of filters to screen out material unsuitable for children would not work as well as COPA.

Not only are filters less restrictive, but they “also may well be more effective,” Kennedy said, because they can block pornography from anywhere in the world while COPA applies only to pornography posted on the Web from within the United States. The opinion, which was joined by Justices Stevens, Souter, Thomas and Ginsburg, suggested strongly that the government would not be able to meet the test of showing why filters were not a better option. It is worth noting that all five justices in the majority opinion are still on the court.

At the time of the decision, ACLU representative Ann Beeson said she planned to ask the Department of Justice to agree to drop the case, given what she described as the court’s “very strong indication” that the law violates the First Amendment. Not only did the government not drop the case, they proceeded to make headlines by issuing controversial subpoenas to Google, Yahoo, Microsoft, AT&T, Comcast Cable, Cox Communications and at least 34 ISP’s demanding records that they could use to try to build a case that filters are not effective.

In opening statements this week, ACLU Attorney Chris Hansen, who is lead counsel in this go-around, reiterated many of the key points that have served the ACLU well over the years of courtroom argument on this law: that COPA would have a chilling effect on protected speech and is not the least restrictive means to protect children. Hansen also took the opportunity to make a few points regarding the images that the government planned to project on the walls to dramatize the evils of explicit materials on the Internet.

“Four of the six images… are overseas sites,” noted Hansen. “They are scary images, unpleasant images, but they won’t be affected by COPA at all….Those images will still be available to every U.S. child, even if COPA goes fully into effect.” Furthermore, said Hansen, after noting that some filters did not block all the images, “[T]here are filters out there that blocked every single one of the images that he [the government’s lead attorney, Christopher Harris] is going to show you…. His sensationalist effort to scare the court by believing these pictures will be protected if COPA goes into effect, and unprotected when using filters, simply should be rejected.”

Harris made an interesting comment in his opening statement for the government, bringing in the recent legislative efforts to curb Internet gambling as a way to defuse the argument that COPA will have no effect on foreign websites.

“COPA, by its terms, applies worldwide,” said Harris. “Other Internet laws have been applied outside of the United States, most famously the laws involving Internet gambling. Courts have found no difficultly establishing jurisdiction over foreign-based websites that seek business in the United States and process payments from U.S. consumers.”

Information is from an ACLU-provided court transcript, 10/23/06
And from an ACLU press release, 10/23/06
For a history of the COPA litigation, see Epic.org. 6/04
See also, Ryan Paul, Ars Technica, 10/25/06

OBSCENITY CONVICTION FOR GRAPHIC PHONE CALLS

ATLANTA, GA -- A recent decision by the U.S. Eleventh Circuit Court of Appeals, United States v. Robert Eckhardt, (10/4/06) bears directly on issues of obscenity law, especially as related to email and blog postings, even though it does not involve adult entertainment. Eckhardt was sentenced to 24 months in prison for a series of "abusive, harassing, or threatening" telephone calls in violation of the Communications Decency Act. He was infuriated over treatment by a Teamsters Union local, and made the calls to the secretary at the union office, informing her in very graphic language where she could stick the school buses, garbage trucks and other apparently work-related objects of his wrath. The appeals court affirmed the conviction and ruled that the calls met the criteria in Miller v. California for obscenity.

Chris Hansen, the ACLU lead attorney in the COPA trial (see report on COPA above) mentioned Eckhardt in his opening arguments to illustrate the point that there is no way to know what the government might elect to prosecute under obscenity laws or under "harmful to minors" laws such as COPA. In fact, said Hansen, the speech engaged in by Eckhardt was mild compared to speech the COPA plaintiffs engage in.

Information is from the Eleventh Circuit opinion in United States v. Robert Eckhardt.

COPS WORK TO PROTECT PUBLIC FROM OBSCENE DEVICES

BEAUMONT, TX -- Police here have raided three local businesses, Sunrise, Krazy Katz, and Bare Necessities, for violating Texas obscenity statutes by selling prohibited merchandise. Employees on duty, as well as two store owners, were arrested and could face four thousand dollar fines, up to a year in jail, or both. Over two thousand items undercover officers thought to be “obscene” were seized in the raids. An "obscene device" under the Texas law is defined as "a device, including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs."

After taking inventory, police say they will hand over the evidence to city judges who will make a ruling on each item individually, according to the law. If the judge deems an item is not obscene, it will be returned to the stores. Those items that are ruled obscene will be used as evidence in trial.

The raids come just weeks after the U.S. Supreme Court refused to review the Texas appeals court decision that validated the obscene devices law in Texas v. Ignacio Sergio Acosta.

Information is from Sharon Brooks, The Examiner, 10/26/06
See also, KNTV Channel 4 News report, 10/26/06