After a friend had a miscarriage earlier this year, I suggested that she turn to the Internet to learn more about what happens when a pregnancy suddenly and tragically ends. Although my friend's doctor was a useful source of information -- as he should be -- his availability was, of course, limited. But by using the Internet to research information about miscarriages, my friend and her husband were able to get answers to their questions at any time of day. They were comforted in reading about statistics and studies that showed their experience was not so unusual. And, by using the online discussion forums offered by a well-known health site, they asked questions about pregnancy and got answers from other women and doctors. Fortunately for my friend, a U.S. federal district court last year issued an opinion that allowed her to easily access the material she sought online, and a federal appeals court in June affirmed that opinion. Without those rulings -- and the U.S. Supreme Court's 1997 landmark decision in the Communications Decency Act case -- information about pregnancy and other women's health issues might be more difficult to obtain on the Internet. The courts' most recent decision was in a case involving the Child Online Protection Act (COPA), a 1998 law restricting access to "material that is harmful to minors." (Despite the similarity in acronyms and common confusion between the two laws, COPA is unrelated to COPPA, the Children's Online Privacy Protection Act, a law that applies to web sites that collect information from children. COPPA has not been struck down by the courts.) Congress had good intentions when it passed COPA, holding hearings and issuing a 32-page thoughtful report about the background of sexually oriented material on the Internet and the need for the federal government to limit children's ability to access it. Statistics cited by the congressional report showed that "almost 70 percent of traffic on the Web is adult-oriented material" and that most sites do little to protect their content from children's wandering or misdirected eyes. Regardless of the accuracy of the report, any regular Internet user knows that adult material proliferates on the Internet; my e-mail in-box is bombarded with reminders. Why COPA is Unconstitutional Under COPA, sites that provide "material that is harmful to minors" were required to restrict access by verifying visitors' ages with a credit card, adult access code or similar technology. Sites that failed to do so could be fined up to $50,000 per day. COPA, however, has never been enforced, because a group of plaintiffs led by the American Civil Liberties Union filed suit to block the law immediately after it went into effect, arguing that COPA would restrict adults from communicating and receiving information online -- a restriction that is protected by the First Amendment. In the recent appeals court ruling, the judges agreed. Because under COPA the definition of "material that is harmful to minors" required a comparison with "contemporary community standards," and because the Internet reaches every community, the court said the only way a web site could comply with the law would be to conform with the requirements of "the most puritan of communities in any state." This forced adherence to the least-common denominator violates the First Amendment. In other words: If COPA was the law, and if residents in the city of Maintown, USA, wanted to prevent their children from reading about pregnancy and other sex-related issues, then every web site offering that kind of information would have to create an age-verification system. My friend might then be required to provide a credit card number before she could access the free health site she found so useful after her miscarriage. And because my friend might not want to reveal her identity to read about and discuss such a personal issue, she might choose instead to stay away from the health site entirely. Fortunately, the First Amendment prevents her from having to make that decision. The courts' reluctance to enforce broad censorship laws on the Internet may seem to provide web sites with the unfettered right to post any adult-oriented material. But web publishers should be aware that laws against obscenity and child pornography are still in effect. And, while not now required, adequate warnings and self-imposed age-verification mechanisms would surely please even non-puritan communities -- and politicians who continue to enact laws that restrict more online communication than is healthy. · This article was originally published on GigaLaw.com in August 2000
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Summary: The Child Online Protection Act (COPA), which restricted material on the Internet that is "harmful to minors," has been ruled unconstitutional as a violation of the First Amendment. Although lawmakers had good inentions when they passed COPA, the law was not a good idea. This commentary explains how some Internet censorship laws can unfairly prohibit important communications online.