The American Civil Liberties Union and 17 online merchants and publishers, including CNET, publisher of News.com, last year filed suit to block the Child Online Protection Act (COPA), claiming that the law is overly broad and violates the First Amendment rights of adults.
COPA makes it a crime for commercial Web sites to give minors access to "harmful material," defined as any sexually explicit communication that lacks "serious literary, artistic, political, or scientific value." Violators face up to $50,000 in fines and six months in prison.
COPA's foes charge that the law is vague and could be applied beyond just pornography sites. Constitutionally protected content such as information about safe sex, gay and lesbian issues, medical conditions--even poetry--could be subject to COPA's restrictions.
Hearing the case tomorrow is a three-judge panel from the Third Circuit U.S. Court of Appeals: Theodore McKee, Leonard Garth, and Richard Nygaard.
A Philadelphia lawyer who has appeared before the court on First Amendment issues described the panel as bright and moderate.
"Many people feel the Third Circuit became fairly conservative in the late 1980s and early 1990s with Republican appointments from the Reagan and Bush administrations," he said. "This panel is in the center."
Garth, a Nixon appointee, is the longest-serving member of the panel. McKee, who was appointed by Clinton, is the least experienced and is likely the most liberal. Nygaard was appointed by Reagan.
COPA is the second major effort by Congress to regulate online pornography. The first attempt came with the Communications Decency Act (CDA), a 1996 law that included a provision making it a felony to expose minors to "indecent" material on the Net. That provision was struck down by the Supreme Court in June 1997.
With COPA, lawmakers aimed to craft a narrower law targeting "commercial speech" that would pass constitutional muster. The government is expected to argue tomorrow that the same requirements faced by adult bookstores and strip clubs in the offline world should apply to for-profit adult entertainment Web sites.
So far, the case hasn't gone well for the government. U.S. District Judge Lowell Reed granted a preliminary injunction to halt enforcement of the law in February.
Witnesses have testified that mandatory age checks would repel Net surfers and would be too costly to implement for plaintiffs such as online magazine Salon.com, A Different Light bookstore, and members of the Internet Content Coalition.
COPA's opponents, who have dubbed the law "CDA II," say there are two alternatives to prosecution under COPA: self-censorship, or registration requirements for all Web site visitors to verify their age through credit cards and other means--a step plaintiffs contend will stifle online traffic and, consequently, advertising dollars.
But proponents of COPA and the government counter that the law only applies to Web sites that sell pornography without checking IDs.