Sen. John McCain, R-Ariz., and two Republican House members on Thursday asked a federal appeals court to agree that the Child Online Protection Act (COPA) is a reasonable way to shield minors from commercial Internet smut.
They argue that the 1998 law is carefully "tailored to quarantine children from exposure on the World Wide Web to commercial pornography" and that the 3rd Circuit Court of Appeals should reverse its decision from June 2000, which slammed COPA as an untenable violation of Americans' right to free expression.
But a divided Supreme Court didn't agree. In May, the justices unexpectedly sent the case back, saying the appeals court should not have relied as much on COPA's use of what it calls "community standards" to define what is harmful to children.
That handed anti-pornography activists a rare second chance to assail the appeals court's decision and stump again for the law. "COPA represents the legitimate and authoritative judgment of Congress that the power of additional criminal laws at the federal level is necessary," the politicians said in their 39-page amicus brief written by the National Law Center for Children and Families.
The two House members who filed the brief are Reps. Michael Oxley, R-Ohio, and James Greenwood, R-Pa. They and McCain also argue that the courts should lift a current prohibition against prosecutions under COPA while legal proceedings are under way.
"Congress has a continuing interest in having the courts correctly interpret the laws they passed," said Bruce Taylor, president of the law center. "They passed this law to deal with free teaser pictures on commercial porn sites that already take credit cards."
In its opinion two years ago, the 3rd Circuit worried that because a Web site in New York City or San Francisco could be prosecuted in a conservative jurisdiction, COPA would have a damaging effect on the Internet. "Because no technology currently exists by which Web publishers may avoid liability, such publishers would necessarily be compelled to abide by the standards of the community most likely to be offended by the message," the court said.
"We still think the statute's unconstitutional for the same reason we thought it was unconstitutional before," said Chris Hansen, an attorney at the American Civil Liberties Union (ACLU), which sued to overturn COPA.
One of the plaintiffs represented by the ACLU is the Internet Content Coalition, which includes MSNBC, The New York Times Co. and CNET Networks, the publisher of News.com.
COPA, which Congress passed as part of a spending measure, makes it a crime to publish "any communication for commercial purposes that includes any material that is harmful to minors, without restricting access to such material by minors." The maximum penalty is six months in jail, $50,000 and additional civil fines.