In Oct., 1998, Congress passed and President Clinton signed into law a new "sequel" to the unconstitutional Communications Decency Act. This new Internet censorship bill, the Child Online Protect Act (COPA, a.k.a. "CDA II") would establish criminal penalties for any "commercial" distribution of material deemed "harmful to minors". The numerous problems with this legislation include overbreadth, vagueness of definitions of key terms such as "commercial", an illegal attempt to force adults to give up privacy to excerise their right to read, prior restraints on publication, and a flawed "community standards" approach that would allow the most conservative jurisdiction in the US country to set the "decency" standards for all Web content nationally (indeed, globally).
Just days after passage of this legislation, EFF in conjunction with the ACLU and EPIC (two other civil liberties organizations) filed a lawsuit challenging the constitutionality of this law and seeking to have it overturned. In 1999, A federal District Court issued a preliminary injunction against enforcement of the law, on the grounds that it is probably unconstitutional. On June 22, 2000, the Third Circuit Court of Appeals upheld the injunction.
Plaintiff ELECTRONIC FRONTIER FOUNDATION ("EFF") is a nationwide, nonprofit organization of approximately 2,000 paying individual members that is committed to defending civil liberties in the world of computer communications, to developing a sound legal framework for that world, and to educating government, journalists, and the general public about the legal and social issues raised by this new medium.
EFF sues on behalf of its members, which fear prosecution or other enforcement under the statute for communicating, sending, or displaying material "harmful to minors" in a manner available to persons under age 18 for commercial purposes. EFF also fears that if the statute goes into effect, content providers will be forced to ban communications that they consider potentially "harmful to minors," thereby depriving EFF's members and others who use its online services of the ability to communicate and access constitutionally protected speech. Some of EFF's members likely to be harmed by the law include:
Bill Boushka: Mr. Boushka maintains a site on the World Wide Web called "High Productivity Publishing" ("HPPUB"). HPPUB provides the public with commentary and analysis of current events, with a particular emphasis on individual liberty and associated responsibilities and obligations. On his site, Mr. Boushka has published a copy of a book he has written entitled, Do Ask, Do Tell: A Gay Conservative Lashes Back, an expose about gays in the military. This politically-charged text contains subject-matter and language that might be deemed harmful to minors and is available for reading, download, and purchase to anyone interested in the topic. Mr. Boushka fears prosecution under the statute.
Jon Noring: Mr. Noring maintains a site on the World Wide Web called "OmniMedia Digital Publishing." On his site, Mr. Noring publishes electronic books, which are available to the public through download. While access to the full texts requires a "SoftLock" password, which must be purchased with a credit card, any interested individual can access the first several chapters of any text for free, without a password, to determine if s/he would like to make a purchase. Several of the excerpts include information that might be deemed harmful to minors. These texts include Fanny Hill (lesbian love scene), Perfumed Garden (sexually explicit story), and Lightning Bolt (sexually explicit dialogue). Mr. Noring fears prosecution under the statute.
Open Enterprises Cooperative: Open Enterprises, a worker-owned cooperative, maintains a site on the World Wide Web called "Good Vibrations." Good Vibrations has an online store where individuals can purchase sex toys, and erotic and sexual self-help books and videos. The Good Vibrations site includes an antique vibrator museum and up-to-date sex information and news. The Good Vibrations site serves as a resource for quality products and information, models honest communication about sexuality, and promotes the philosophy that sex is fun and natural. All of the information on the site is provided for free. The site is a resource not only for their customers but for sex therapists, educators and advice columnists nationwide. Open Enterprises fears prosecution under the statute.
Rufus Griscom: Mr. Griscom publishes an electronic magazine on the World Wide Web entitled "Nerve," which is about "sexual literature, art, and politics." The site includes stories and essays by Pulitzer Prize winners and other acclaimed writers, as well as hundreds of nude photographs. It also includes NerveLink.com, a directory of 4,000 sites related to sex, health and literature. The site contains sexually explicit language and images that Mr. Griscom believes are fully protected for adults by the Constitution. Mr. Griscom fears prosecution under the statute.
All of the above EFF members, and other EFF members not specifically mentioned, fear prosecution or other enforcement under the statute for communicating, sending, or displaying material "harmful to minors" in a manner available to persons under age 18 for commercial purposes. None of the EFF members can prevent their communications from reaching minors without also preventing adults from accessing their speech.
(Excerpted from the complaint filed Thu., Oct. 22, 1998, in federal court.)