The Supreme Court is going to hear the Justice Department's appeal of a unanimous decision by the United States Court of Appeals for the 3rd Circuit that upheld the ACLU's preliminary injunction against the Child Online Protection Act (COPA). The COPA was on hold after the ACLU won a preliminary injunction against the Act in 1999. This decision could have a huge impact on how adult webmasters do business - get ready! By using this webpage in any way you agree that you accept our Terms and Conditions.

1. The Communications Decency Act of 1996

Title V of the Telecommunications Act of 1996, also called the "Communications Decency Act of 1996" (CDA), prohibited the use of a computer to display "in a manner available to a person under 18 years of age, any [content that] depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The ACLU and others challenged the legislation. The United States, led by Janet Reno, took the dispute all the way to the Supreme Court.

The Court had two options - treat the Internet like broadcast media or treat it like print media. Legislation and regulations that censor broadcast media are generally upheld on the premise that because television and radio are broadcast to the public, without regard to who receives the material being broadcast, minors might accidentally encounter sexual material. Conversely, print media such as magazines and books is easier to keep away from minors, for example by prohibiting sales to anyone under 18, and it enjoys a greater level of protection.

The Supreme Court in Reno v. ACLU decided that communication on the Internet deserves the same high level of protection as communication in print media. The Court noted the growing importance of the Internet as a public forum, and struck down the CDA because it prohibited adults from engaging in Constitutionally protected speech. Enter the 105th Congress.

2. The Child Online Protection Act

The 105th Congress came up with and passed the Child Online Protection Act of 1998 (COPA). President Clinton immediately zipped his pants and dutifully signed the legislation into law. The relevant section of the COPA provides that:

"Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both."
In addition, the Act provides fines and penalties for "intentional violations" (if you refuse to remove the offending material) of up to $100,000 for each day that the material remains on your site.

A. Commercial Purposes

Under the Act, a person is engaged in making communications for commercial purposes if that person "devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities." If you intend to make any money off of any part of your website, you are engaged in making "communication for commercial purposes" and the Act applies to you.

B. Harmful to Minors

The Act defines a minor as "any person under 17 years of age" and material that is "harmful to minors" as:

"any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that:
(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

The COPA expands the definition of obscenity by adding an "as to minors" focus and by including material that is currently considered pornography ("lewd exhibition"). Of particular interest to adult site webmasters is the prohibition of depictions of "an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast." If you run a website that contains adult content that is not covered by this definition, here's some good news: you are probably not running an adult website. The definition of "harmful to minors" in COPA appears to include display of all sexual material.

The COPA prohibits any depiction of nudity or sexual conduct that the most conservative community in the United States might find offensive as to minors. Remember, prosecutors in conservative jurisdictions can prosecute adult site webmasters for transmitting prohibited material, regardless of where the webmaster lives or where the server for the site is located. See United States v. Thomas, 74 F.3d 701 (6th Cir.), Cert. denied, 117 S.Ct. 74 (1996). Do you really want a jury in a small county in the South (no offense) to decide whether an image on your publicly accessible website constitutes a "lewd exhibition" of the female breast?

3. Defenses:

"It is an affirmative defense to prosecution under [the COPA] that the defendant, in good faith, has restricted access by minors to material that is harmful to minors--
(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

(B) by accepting a digital certificate that verifies age; or

(C) by any other reasonable measures that are feasible under available technology."

Essentially, the COPA prohibits making pornographic material available free to minors. If you hide every image of nudity or sexual conduct on your site in a "member's area," protected by credit card or other age verification system, you probably won't be prosecuted under the COPA. Of course no one will stay long at your site if there aren't any free pictures, but at least you'll be doing your part to protect the children.

4. Conclusion:

In the event that the COPA or similar legislation passes, the most likely scenario is that obvious targets will be prosecuted first. If the index page on your site contains an 800 X 600 greasy close-up of deep anal fisting in full-color, and the name of your site is "," you're in trouble. Similarly, if free hardcore material is available just a few clicks into your site, you may be a target for prosecution. If you want to be safe, censor all genitalia, "lewd images," and images of sexual conduct on the free section of your site. Hide the good stuff in your members' section and charge for access - don't give the censors a reason to target your site.

If it bothers you that you pay taxes to a government that wastes your money trying to censor the Internet, get involved in the process. You can bet that people who don't want little Jimmy to get excited by looking at a bare breast online are organized, and they work very hard to influence their Representatives in Congress. Contribute to the debate by sending email, faxes, and letters to your Representatives, especially if they support the COPA or similar legislation. Let them know what you think about pornography and free speech on the Internet. The following links should get you started:

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