COPA Hearings in Philadelphia

In February, a federal district court judge ruled that COPA was a well-intentioned attempt to protect children but that it went too far. The judge barred the federal government from enforcing it.

COPA is Congress's second major attempt to regulate Internet pornography, the first being the Communications Decency Act of 1996 (CDA), which the Supreme Court found unconstitutional in 1997. COPA criminalizes making pornography available to minors on the Internet, with exceptions for Webmasters who have used a supposedly reliable "adult check" (i.e., registration) screening process.

Even though COPA's fate so far precisely mirrors that of its predecessor, the Communications Decency Act, its opponents warn that it's a tougher law to challenge.

Legally, this is a more difficult case than the CDA because Congress took into consideration the concerns the Supreme Court raised in striking down the CDA. COPA, which Congress passed as part of a spending measure last fall, makes it a crime to publish "any communication for commercial purposes that includes any material that is harmful to minors, without restricting access to such material by minors."

The Center for Democracy & Technology and a broad group of publishers, Internet industry companies, civil liberties organizations, and trade associations file amicus brief on COPA last month. The CDT brief, filed in the federal Court of Appeals in Philadelphia, focuses on COPA, which would impose criminal and civil penalties on Web publishers who fail to prevent minors from viewing material that is "harmful" to them. Although the government claimed that COPA would apply only to "commercial pornographers," that phrase does not appear in the law, and CDT and the other signatories to the amicus brief argued that the Act would inhibit the publication of a great deal of non-pornographic speech, and therefore is unconstitutional.

The Chamber of Commerce of the US & the Internet Education Foundation also filed an amicus brief in support of the US District Court finding that COPA was unconstitutional.

A Federal Appeals Court in New Mexico Weighs In

In that lawsuit, the civil liberties group sued to overturn a state law making it a crime to post material considered "harmful to minors" on-line without cordoning it off from visitors through means such as requiring a credit card number.

New Mexico governor Gary Johnson lost before a federal district court, but appealed to the Tenth Circuit. In its decision released late Tuesday, a three-judge panel sided with the ACLU, writing that the state law "unconstitutionally burdens otherwise protected adult communication on the Internet."