Online Porn Law - COPA Opponent

(Courtesy ACLU)

The Supreme Court ruled in a 5 to 4 decision Tuesday that the Child Online Protection Act (COPA) probably violates the First Amendment right to free speech and sent the case back to a lower court.

Ann Beeson, associate litigation director at the American Civil Liberties Union, argued before the Supreme Court against COPA when the justices heard oral arguments on March 2.

Beeson and washingtonpost.com reporter David McGuire discussed the implications of the high court's ruling.

A transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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David McGuire: Welcome to our live chat with the ACLU's Ann Beeson. Please note that due to scheduling constraints, Ann will only be able to join us for about 30 minutes today. Thanks for joining us.

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David McGuire: Hi Ann, thanks for joining us today. Tell us a little about the significance of yesterday's ruling in the ongoing battle over online pornography. You've been to the Supreme Court a few times before. Any end in site for this debate? If the Court eventually does say, unequivocally that COPA violates the constitution, do you expect Congress to pass yet another iteration of the law?

Ann Beeson: Thanks for having me. Of course I prefer to think of the battle as one of free speech! We hope that AG Ashcroft calls it quits at this point. Since they know that filters are even better today than they were when we first tried the case six years ago, it is highly unlikely they could win this. And better not to waste more taxpayer dollars defending an unconstitutional law.

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Arbor Harbor, Mich.: Good afternoon - Do you support the majority's contention that filtering software is a better bet to prevent kids from seeing porn than COPA? How can that be if filtering software is so shoddy? And weren't you the folks who argued against filtering in another Supreme Court case?

Ann Beeson: Yes, we have always taken the position -- since we first defeated the Communications Decency Act almost 10 years ago -- that voluntary use of filters are a far less restrictive method for parents who wish to limit Internet access than criminal penalties on protected speech. We argued (unsuccessfully) that last year's mandatory filtering law was unconstitutional because 1) it was a federal mandate, not voluntary; and 2) the law forces all adults as well as minors to use filters in public libraries.

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College Park, Md.: Don't you think that when the First Amendment was enacted back in the 1700's, our forefathers never in their wildest dreams would have thought that this "freedom" would allow pornographers to publish sex acts on such a wide scale (such as the Internet)that children could easily gain access to them?

Ann Beeson: The Constitution is a living document. (It originally denied African-Americans and women the right to vote, as you'll recall.) Even the Supreme Court was clear to say that they wanted to protect children, but just that this law goes way too far by restricting MUCH more than pornography and by threatening protected speech with criminal sanctions.

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Herndon, Va.: Isn't the Internet a public place? I realize that this decision only applies to informational web sites, but if I were to put up a billboard along a busy highway advocating the use of condoms and included a gigantic picture of one in use would the same argument apply? After all, people could cover their children's eyes or perhaps install special blinders in their cars to keep children from seeing things they should not. If we can restrict some types of advertising to adult magazines (cigarettes) why can't we place minimal restrictions on internet access? How does this "chill" speech?

Ann Beeson: The fact is, COPA would make it a federal CRIME to display words and pictures that are freely available on cable television and in R-rated movies. Parents -- and not the federal government -- should place limits on Internet access just as they do movies and tv. As to billboards, in fact the Supreme Court ruled many years ago that Congress couldn't ban the display of images to everyone just to protect children.

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Cringing Goose, Manitoba, Canada: Greetings from the high plains... Has technology truly advanced enough in five years' time that maybe there is a way for pornographers to set up a real barrier to entry for children?

Ann Beeson: I think that user-based technology has in fact advanced significantly, i.e., filters. From a First Amendment standpoint, it always makes sense to ask users who wish to avoid controversial speech to do so, rather than to make it a crime for the universe of speakers to communicate. The case yesterday protected far more than pornographers -- literally thousands of sites that would have risked jail time for communicating art, sex education, etc that discussed or involved sex.

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Forsaken Gorge, N.D.: The Supreme Court in 2002 said that local communities could determine their standards of what's harmful or indecent vis a vis children. Can you tell me in layman's terms how that shapes the debate we're having today? Is that part of COPA in effect? How can you let each tiny hamlet (case in point) claim a moral bearing over their particular hectare of Internet property? Is that even possible? Thanks very much.

Ann Beeson: The prior decision did not ultimately decide whether local or national standards will govern the Internet, it just held that using local standards did not ITSELF make the law unconstitutional. Of course, it is true that under the obscenity law (which is currently enforced), the federal government can prosecute web content wherever they can download it. That issue is being litigated in another case pending in New York, so the Supremes will get another chance to decide it.

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Eugene, Ore.: Hi Ann. I would be interested in a discussion of this ruling in the context of CIPA, the law that requires schools and libraries to install filtering if they want federal funds for technology. To respond to the COPA ruling, the Justice Department will have to prove that filtering technologies do not work. This should be easy. When the Kaiser Family Foundation conducted a study of filtering, it found a 10% failure rate -- one in 10 porn sites were accessible. But if the Justice Department proves that filters do not work, then we will be in a situation where Congress has forced schools and libraries to spend millions of dollars on technologies that don't work. How do you think the Justice Department will deal with this Catch-22 situation?

Ann Beeson: The Justice Department already convinced the Supreme Court, in the CIPA decision last year, that filters worked well enough to mandate their use in schools and libraries. So I think they will have a very difficult time now arguing that filters aren't an adequate alternative to criminal penalties. In this case, the question isn't whether filters are perfect -- they aren't -- but whether they are an effective and less restrictive alternative to COPA. COPA itself is remarkably ineffective, because it could never prevent sites overseas from displaying sexual speech. Also, I think the COPA Commission findings on filters will be very useful if there is another trial.

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Colorado Springs, Colo.: Didn't the District Court rule that none of the clients represented by the ACLU would be affected by COPA because they weren't commercial pornographers according the narrow definition given in the law? Why, then, does the ACLU maintain this is a case about free speech when the minority opinion clearly believes the law by definition only applies to speech that enjoys no First Amendment protections?

Ann Beeson: No, I'm afraid you were reading the dissent, not the majority opinion. Justice Kennedy's opinion did not discuss whether our clients were covered by the law. If you're a sane web publisher and you have speech that is sexually frank, you're going to either self-censor or risk jail time if COPA ever takes effect. Especially with Ashcroft as AG, our clients and others like them have every reason to be very worried. This is the guy who covered up a nude statue in a federal building! He is outspoken against gays and lesbians and opposed to anything but abstinence only education. Anyone with speech involving contraception or sexual orientation would be at risk.

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Friendly, N.J.: Good afternoon and thanks for coming online!; I know it's not your job to judge the content of the free speech that you're defending, but have you SEEN some of these Web sites? "Amsterdam sluts take 100 partners" is one of the milder come-ons that I've seen (no, I'm not a regular visitor to porn sites). I know it's legal, but I hate the idea that my 8-year-old probably can find this stuff quicker than I can. What is your personal take on some of these hardcore porn sites?

Ann Beeson: For the record, I can't stand hardcore porn. But I feel very strongly that, in a democracy, neither a single individual nor the government should dictate what any other person can say, read, or see. Tyrannies routinely label speech "offensive" to suppress it.

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Washington, D.C. : Now that COPA has been turned down, do you see the Bush Administration moving away from encouraging censorship and instead increase funding for actual policy that deceases that amount of child porn...instead of just trying to deter the public from seeing it?

Ann Beeson: Congress has already pass other laws which offer solutions without unduly restricting adult speech. They have required ISPs to tell subscribers about filters, and have given tax incentives to ISPs who provide them for free. They have created a dot.kids domain for kid-friendly content, so that parents who wish can send their kids just to those sites. I'll hope we'll see more of these approaches and NO MORE criminal laws for protected speech!

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Arlington, Va.: And the problem with requiring ADULTS to prove they are ADULTS before viewing ADULT content online is what? Age verification is required for so many elements of life, from voting to buying alcohol -- why is this different?

Ann Beeson: Two responses. First, the problem under COPA is that a web publisher first has to figure out whether his speech may be criminal or not. That is very difficult to do under COPA's "harmful to minors" standard. And if you guess wrong, you go to jail. Second, even assuming you guess correctly and have the funds to set up costly screens, the evidence in our case showed that 75% of web users are deterred from accessing content behind credit card screens. That's because the vast majority of content on the web is available for free -- and our clients want to continue to be able to provide it for free.

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Arlington, Va.: So what's next for COPA? Is it dead in the water or will this case come back to the Supreme Court some day?

Ann Beeson: We certainly hope it is dead in the water. But, if the government doesn't give up, we will keep fighting as long as necessary until it is TRULY dead! I would think the Supreme Court would be tired of the case by now ...

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Williamsburg, Va.: In Virginia, state employees, including faculty at state universities, must ask permission before accessing sexually explicit material on state computers. As an English professor, I have to get the state's permission to read D.H. Lawrence, or James Joyce, or Chaucer on my office computer. Will this ruling do anything to revive the First Amendment and academic freedom in Virginia or are those forever dead here?

Ann Beeson: As you probably know, the ACLU challenged that terrible VA law, and lost in the 4th Circuit. So I'm afraid you're stuck with that particular law. Are the universities actually enforcing the law much? I hope not. If they are, it's worth shaming them through public attention to specific instances of censorship.

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David McGuire: Unfortunately we're out of time. I'd like to thank Ann Beeson for joining us and our readers for asking so many thoughtful questions.

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