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Kayden Kross at Twistys

November 04, 1999 08:02pm
Judges Criticize Porn Law
Source: Reuters
by: David Morgan

(PHILADELPHIA, PA) -- A government move to protect children from pornography on the Internet came under fire Thursday from a U.S. judge who suggested that the Child Online Protection Act could lead to censorship as restrictive as in ''Iran or Iraq.''

The new U.S. law would make it a federal crime for commercial Web site operators to expose children under 17 to material deemed harmful. Government officials have been barred from enforcing it, however, because of a preliminary injunction imposed in February by a U.S. district judge who said he believed the law might violate the constitutional right to free speech under the First Amendment.

Justice Department attorneys who appealed the lower court's ruling to the Third U.S. Circuit Court of Appeals in Philadelphia quickly ran into trouble when a three-judge appellate panel opened an hour-long hearing to review oral arguments in the case.

U.S. Circuit Judge Leonard Garth criticized the law for leaving the definition of ``harmful'' material to contemporary community standards.


Garth commented, ``It seems to me that in terms of the World Wide Web, what the statute contemplates is that we would be remitted to the most severe standards, perhaps those of Iran or Iraq,'' where he said that even showing a woman's face was considered objectionable.

``Are we all going to be remitted to the standards of the residents of Utah or the Amish community? Isn't it for the most conservative community to be the ceiling for the rest of us?'' he asked. ``This one particular aspect gives me great, great trouble, and I don't think it's resolved.''

The Child Online Protection Act, which represents the latest attempt by the Republican-controlled Congress to control Internet smut, was signed into law by President Clinton a little over a year ago. But the law quickly ran into a court challenge from a coalition of Internet-based businesses led by the American Civil Liberties Union, the Electronic Privacy Information Center and the Electronic Frontier Foundation.

Two years ago, a similar coalition persuaded the U.S. Supreme Court to strike down the law's forerunner, the 1996 Communications Decency Act.

Despite assurances that material would be exempt if it had redeeming social, artistic or political value, opponents say the law could be used by conservative groups to close down Web sites devoted to hot-button issues, including gay or reproductive rights.

Rights Group Predicts Self-Censorship

``There would be widespread self-censorship,'' ACLU attorney Ann Beeson told the appellate panel, saying the law's maximum penalties of $50,000 in fines and six months in prison could have a chilling effect on businesses that offer artwork, online magazines or sexual assistance to people with physical disabilities. Some violators also could face additional daily fines of $100,000.

``This is a criminal standard we're applying, and there are a lot of real people out there running businesses and wondering what they can put on the Web,'' she said.

Justice Department lawyer Jacob Lewis tried to assure circuit court judges that the law was meant to target online pornographers who cater to the prurient interests of youths. He likened the law to the brown paper wrappers used to hide the covers of sexually explicit magazines, saying, ``The government has a compelling interest in protecting children from harmful sexual material.''

But the government's argument only led Garth and fellow U.S. Circuit Judge Theodore McKee to suggest that Congress might be too late in seeking to impose controls on the bustling global electronic marketplace that the Internet has created.

``I'm not at all sure that one can structure legislation that can control the very thing that ought to be controlled (pornography). I'm not sure that events haven't overtaken the legislative process,'' Garth said.

McKee appeared to side with ACLU claims that the government would be better off encouraging parents to buy blocking software to keep youngsters from porn sites. ``In this day and age of family values, maybe the only way to do it is to empower the family so they can decide,'' he said.

Attorneys said they expected the appellate court to rule within a few months but predicted the case would be appealed to the Supreme Court regardless of the panel's opinion.

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