The American Civil Liberties Union sued the government on behalf of 17 Web site operators who claim that the law would force them to self-censor, thus violating their First Amendment rights. The ACLU is asking U.S. District judge Lowell Reed to grant a preliminary injunction to block enforcement of the law during this four-day hearing. The law could take effect as soon as February 1, when a temporary hold on it runs out. Those who flout the law could face up to six months in prison or $50,000 in fines.
The government is arguing that the Child Online Protection Act (COPA) is much more narrow than its predecessor, the Communications Decency Act, most of which was struck down by the Supreme Court in June 1997. Opponents of COPA have dubbed it "CDA II."
Proponents of COPA say it is different from the CDA in that it only applies to sites selling pornography. Witnesses will testify today that it is economically and technically feasible for these sites to check surfers' IDs through credit cards, adult PINs, or digital signatures. Justice Department witnesses will testify that Web sites will not be harmed financially by the law--and that defining "harmful to minors" is not as complicated as the ACLU makes it out to be. After all, 48 states have "harmful to minors" laws on the books, they will argue.
The ACLU is trying to prove that if upheld, the law will not only stifle Net sites' free speech, but also that COPA causes the sites undo burden by forcing them to screen all visitors, which could stifle traffic and, in turn, cause the sites to lose advertising dollars.
Scheduled to testify here today are the DOJ's three remaining witnesses, as follows:
Dan Olsen, a professor of computer science at Brigham Young University, who will testify that the defenses laid out in COPA are technically and economically feasible. Olsen testified on behalf of the government in its defense of the Communications Decency Act, most of which was struck down by the Supreme Court in June 1997. Opponents of COPA have dubbed it "CDA II."
Air Force Special Agent Damon Hecker, who will convey the breadth of sexually explicit content available via commercial Web sites.
Brian Blonder, a partner at PriceWaterhouseCoopers, who is expected to refute the plaintiffs' claim that COPA will harm them financially.
The government has presented only one witness so far due to delays resulting from legal wrangling over whether to lock the public out of parts of the hearing. The plaintiffs have said they would like to keep some financial information out of the public eye.
Both sides have said they are willing to work through the issue of an open courtroom to resolve the remaining conflicts, but if they don't by 9 a.m. ET today, Judge Reed likely will intervene. He could choose to look at the documents in question and decide for himself if they are sensitive. Either way, closing arguments in the case now won't take place any earlier than tomorrow.
Members of the media want any proceedings to be open to both the press and the public. USA Today, the Associated Press, MSNBC Interactive, the New York Times, and Wired News have retained an attorney and assert that the public has a "presumptive First Amendment right to access to these proceedings [that] is not outweighed by the plaintiffs' blanket allegations of concerns about purportedly confidential information."
Judge Reed urged the legal teams to settle the issue on their own, and made clear his opinion in doing so: "My experience has been that I have never closed a courtroom--and I haven't closed this one yet, either."