Internet Censorship Goes to Court Again: Federal Judge Blocks CDA II

by Liz Highleyman

This article appeared in the 10 December 1998 issue of the Bay Area Reporter.

On November 19, after a day-long hearing, U.S. District Judge Lowell A. Reed, Jr. issued a ten-day temporary restraining order blocking enforcement of the Child Online Protection Act. The law, informally known as CDA II, is intended to restrict minors' access to sexually explicit material on the World Wide Web. The law was originally scheduled to go into effect November 20. A second round of hearings is expected to get underway November 8 in Philadelphia as the *Bay Area Reporter* goes to press. The judge is expected to extend the restraining order for at least another ten days.

CDA II is a reworked version of the Communications Decency Act, which attempted to limit online distribution of "indecent" or "patently offensive" material; the law applied to all users and all areas of the Internet. The original CDA was declared unconstitutional by the Supreme Court in June 1997. The court ruled that the CDA was overly broad and would limit adults to viewing only material that was suitable for children.

The new law was passed by Congress and signed by President Clinton on October 15 as part of a larger budget bill. This legislation differs from the original CDA in that it imposes a narrower standard of "harmful to minors," and applies only to commercial websites. The legislation requires commercial website operators to verify that those accessing sexually explicit material are at least 17 years old, for example by requiring a credit card. Violators could face up to a $50,000 fine and six months in prison.

The White House had initially objected to the legislation following a Justice Department analysis that the law was likely unconstitutional. However, Mike Oxley (R-OH), the bill's co-sponsor, said that he had studied the Supreme Court's CDA ruling and believed that the new law would survive a constitutional challenge.

On October 22, a coalition of 17 plaintiffs including the American Civil Liberties Union (ACLU) filed a suit challenging the law on constitutional grounds. The plaintiffs assert that the "harmful to minors" wording is too vague and has no accepted definition. They also argue that the new law is basically the same as the original CDA, and that the measure would chill free expression. The case was brought before the same district court in Philadelphia that ruled against the original CDA. ``It's deja vu all over again...This bill will once again criminalize socially valuable adult speech and reduce the Internet to what is considered suitable for a 6-year-old,'' said ACLU staff attorney Ann Beeson, a member of the legal team that successfully argued the previous CDA case. She added, ``There is a huge category of information out there that has value to adults but lacks value to minors.''

Other coalition plaintiffs include the the Electronic Frontier Foundation, a San Francisco-based civil liberties group; the *Philadelphia Gay News*, which includes HIV prevention information on its website; and a group that provides gynecology information on the Internet.

Two plaintiffs testified at the November 19 hearing. Norman Larila of A Different Light -- which runs a commercial website in addition to its three bookstores in San Francisco, West Hollywood, and New York -- said that customers who are not completely comfortable with their sexuality might not wish to reveal identifying age-verification information, and claimed that the cost of complying with the new law would be "insurmountable." The second witness was David Talbot, editor of the online magazine *Salon*, which includes some sexually explicit content such as a regular column by "sexpert" Susie Bright, a former editor of *On Our Backs* magazine.

The Justice Department attorney called no witnesses to speak in favor of CDA II, and could not satisfactorily answer Judge Reed's question about how the new law differed from the original CDA. Reed concluded that the law probably does violate the First Amendment, and suggested that the plaintiffs lawsuit would likely succeed.

The ACLU lawsuit is not the only protest against CDA II. The day before it was to go into effect, Danni Ashe, founder of Danni's Hard Drive, and several other adult performers held Un-Strip for Freedom 1998. As cameras broadcast live to the Internet, the performers appeared nude and slowly put their clothes back on, ending holding signs reading "I comply." "Post-pubescent female breasts" are among the so-called harmful matter that would be disallowed by the new law.

© 1998, Liz Highleyman

Liz Highleyman --