It's not all that often that a month-long trial begins in federal court where everyone knows from the start which side is likely to win.
But that was the situation Monday in ACLU v. Gonzales as the final round of litigation got underway in a challenge to the Child Online Protection Act (COPA), a law which threatens criminal penalties for commercial Web site operators that allow children to access material that is "harmful to minors."
Eight years after it was passed, COPA has never gone into effect because Senior U.S. District Judge Lowell A. Reed Jr. granted a preliminary injunction that, after two trips to the U.S. Supreme Court, won the approval of a 5-4 court.
Although the majority was a slim one, the high court's holding was that the ACLU and its co-plaintiffs are "likely to succeed" in proving that COPA is unconstitutional.
But "likely" doesn't mean certainly, and the Justice Department isn't giving up the fight.
In preparation for Monday's trial, Reed ordered lawyers on both sides to file their proposed findings of fact and conclusions of law.
Ordinarily, such briefs are filed after a nonjury trial has concluded to aid the judge in his drafting of an opinion that announces his verdict.
But ACLU v. Gonzales is no ordinary case, and Reed apparently wanted the lawyers to provide a roadmap for the trial, which is expected to boil down to a battle of the experts.
One of the central disputes in the case is whether children can be protected by "filtering" software -- a program added by parents to a computer to block access to sexually explicit Web sites.
The government, in its brief, insists that "filtering software cannot completely protect minors from exposure to sexually explicit material on the World Wide Web. The status quo solution -- filtering software without any government regulation -- fails to protect children adequately."
The better solution, the government argues, is to stop pornography at its source by requiring Web site owners to demand "age verification," such as a credit card, before allowing access to sexually explicit content.
But the plaintiffs lawyers -- a team from the ACLU and Latham & Watkins -- argue that COPA is overbroad and that many legitimate Web sites fear prosecution under the law.
Age verification won't work, the ACLU argues, because Internet users are reluctant to give their identity and Web site owners cannot afford to process credit cards just to allow access to free content.
And even if a credit card system were installed, the ACLU says, it wouldn't prevent children from gaining access since many youngsters have access to their parents' credit cards or even have their own cards.
Instead, the ACLU says, Congress should go back to the drawing board and draft laws designed to enhance the effectiveness of filtering software.
"Congress could enact a statute that permits the distribution of such material [that is harmful to minors], but instead requires Web site operators to include a rating, label, or code on the Web site that makes clear that harmful to minors material is available on the Web site. Such a rating, label or code could be placed on the initial home page of the site," the ACLU argues in its brief.
"Requiring Web sites to include a harmful-to-minors rating, label or code would make filtering products even more effective and accurate at blocking harmful to minors material," the brief says.
Another way to make filters more effective, the ACLU says, would be a federal law requiring the Justice Department to compile and maintain a list of Web sites that contain material that is harmful to minors.
Such a statute "would provide filtering product companies with the ability to accurately block absolutely all speech that the government believes is harmful to minors. It would also provide parents and other entities with information about the types of material that are on the Web in order to assist parents in determining what protections, if any, are necessary for their children depending on their individual values and circumstances," the brief says.
The ACLU contends in its brief that "filtering product companies would accept a governmentally created list of inappropriate sites; in fact, many have already testified that they would almost certainly comply with any request from a governmental entity to include specific sites on their lists."
But Justice Department lawyers insisted in their brief that "voluntary measures such as a Web site rating system, filtering products, and education, will be effective only if they are used in conjunction with the requirements of COPA, because voluntary measures alone will not prevent children from accessing material harmful to minors."
A rating system simply wouldn't work, the Justice Department says, because Web site operators "would lack an incentive to label their material in a manner that makes it more likely that filters will block access."
The operators, they say, "would have to agree to a uniform system of ratings, or agree to subject themselves to an independent rating body."
And even if such a system were attempted, the Justice Department says, it would prove ineffective because "Web sites are too numerous and change too frequently for the government, or any private business, to effectively separate harmful from nonharmful material."
Instead, the government argues, "Only a solution directed at the source of the problem can provide the incentive necessary to adequately protect children."
In an opinion handed down on Oct. 10, Reed rejected a last-minute bid by the government to have the case dismissed.
In its motion, the government argued that none of the named plaintiffs has standing to challenge the law because they are not "commercial pornographers," and that their fear of being prosecuted under COPA is therefore "too speculative."
But the plaintiffs lawyers argued that plaintiffs such as Salon.com and the Philadelphia Gay News have good reason to fear that they will be targeted for prosecution because the law prohibits any commercial dissemination of material that is deemed to be "harmful to minors."
Reed sided with the plaintiffs, finding that "there is nothing in the statute that limits COPA to commercial pornographers."
The legal test for establishing standing on the basis of a credible threat of prosecution is "quite forgiving," Reed said, and courts "will assume a credible threat of prosecution in the absence of compelling contrary evidence."
Under COPA, a commercial Web site operator faces up to six months in prison and fines of up to $50,000 if found to have allowed minors access to harmful material.
The law defines 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, if not obscene, meets the law's three-pronged test.
Under the first prong of the test, material violates the law if "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."
The second prong calls for proof that the material "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."
Finally, the material must be shown to "lack serious literary, artistic, political or scientific value for minors."
With that test in mind, Reed found that the plaintiffs have standing because they "will be able to show at trial that they have a legitimate fear that they could be prosecuted under COPA because their materials could be found to be harmful to minors."
Having reviewed each of the plaintiffs' Web sites, Reed found that many of them include material that "could be found to: have been designed to appeal to the prurient interest of a minor; depict or describe a sexual act or contact or a lewd exhibition of the genitals or post-pubescent female breast in a manner patently offensive with respect to minors; and lack serious literary, artistic, political or scientific value for minors."
Some of the plaintiffs' materials "are more graphic than others," Reed noted, and "range from erotic homosexual kissing to highly eroticized descriptions or depictions of anal and vaginal sex."
In a footnote, Reed said the term "prurient interest" is most often defined as "a shameful or morbid interest in nudity, sex, or excretion over and beyond that which would be characterized as normal."
But that definition was significantly expanded by the U.S. Supreme Court, Reed noted, in a decision that said materials may appeal to the prurient interest if they are merely "in some sense erotic."
In another footnote, Reed said, "I find that it is possible that some communities would find even minor sexual contact, like kissing, to be prurient in nature and patently offensive if performed by homosexuals."