The American Civil Liberties Union has asked U.S. District Judge Lowell Reed to grant a preliminary injunction against COPA on grounds that it forces commercial sites to self-censor, and could cost them visitors that would be put off by a mandatory ID check.
The ACLU says the government violated the First Amendment when President Clinton signed COPA in October 1998. But from the start of this hearing, which is now set to last five days, the ACLU also has been trying to bar the public's access to certain information, primarily the financial records of the plaintiffs in the case.
The Justice Department wants to rebut in open court the ACLU's argument that it is too costly to comply with COPA. Justice witness Brian Blonder is set to examine the financial status of plaintiffs such as Salon Magazine.
Today, however, the judge found a middle road that would avoid disclosing Salon's financials. The ACLU agreed to drop Salon as a plaintiff in its "applied challenge," meaning the online magazine no longer will challenge the law from the standpoint of an individual company. Salon will, however, remain a part of the "facial" challenge to the law, the outcome of which will affect all commercial Web sites. The "applied" challenge only affects the plaintiffs, whereas the facial challenge represents the big picture--the overarching First Amendment challenge to the law.
The judge also ordered that Blonder cannot testify in open court about Salon's bottom-line expenditures. He can, however, refer the judge to the sealed court document in which that information is detailed. He also cannot reveal in open court the specific number of page views that Salon has promised to advertisers, which determines the rates the magazine charges for advertising space.
The ACLU prevailed in its quest to keep Salon's financial information out of the public eye, but the DOJ still can attack Salon's argument that it can't afford to comply with COPA. The agency could argue, for example, that sites could set up a registration system that all users would have to go through before gaining access to content that is sexual in nature.
The DOJ was against Salon being severed from the case. Justice wants to use Salon as an example of why the law should be upheld.
"If the government can show that it is possible for plaintiffs to comply, that supports our claim that [COPA] is not overly broad," said DOJ attorney Jonathan Foote. "Even if Salon wasn't in the case at all, the government would be able to gather evidence that they and others on the Web can comply. To me, to suppress Mr. Blonder's testimony would prejudice our defense."
The judge disagreed that Justice's defense would be weakened if Blonder was kept from referring to the specifics of Salon's finances, but he still is allowing the DOJ to use Salon as an example.
News agencies fought to keep the court open. USA Today, the Associated Press, MSNBC Interactive, the New York Times, and Wired News have filed a court brief stating that the public has a "presumptive First Amendment right to access to these proceedings which is not outweighed by the plaintiffs' blanket allegations of concerns about purportedly confidential information."
"Salon believes it would be severely damaging to their business to reveal any of the information," said ACLU staff attorney Ann Beeson. "Salon Magazine, like any other new business, is in the middle of attracting new investors and new advertisers to their business."
(The Internet Content Coalition, of which CNET: The Computer Network, publisher of News.com, is a member, is a plaintiff in the COPA case.)