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In its latest attempt to protect kids from smut on the Internet, Congress has once again run afoul of the Constitution, a federal appeals panel has ruled. In ACLU v. Reno, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals Thursday upheld a preliminary injunction that barred enforcement of the Child Online Protection Act, finding that the fatal flaw in the law was its use of “community standards” — a concept that simply doesn’t work in the non-geography of cyberspace. “Because material posted on the [World Wide] Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of each particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state’s community standards in order to avoid criminal liability,” Senior U.S. Circuit Judge Leonard I. Garth wrote. COPA was passed after the U.S. Supreme Court struck down the Communications Decency Act, a law that barred all Internet users from engaging in “indecent” or “patently offensive” communications with minors. In passing COPA, lawmakers said they had resolved all of the problems raised by the Supreme Court in striking down the CDA. The new law was limited to “commercial” speech. And instead of outlawing “indecent” or “offensive” speech — terms that were deemed too broad and vague — the new law specifically targeted only speech that is “harmful to minors.” But U.S. District Judge Lowell A. Reed Jr. said the law was impossible to comply with since Web publishers have no way of knowing when they are communicating with minors. Finding that the ACLU was likely to succeed in its attempt to have the law struck down on First Amendment grounds, Reed preliminarily enjoined its enforcement. The Justice Department took an immediate appeal and argued that the law should be allowed to go into effect since the constitutional flaws were cured by Congress. The 3rd Circuit disagreed but said it was upholding Reed’s injunctions for completely different reasons. Garth, in an opinion joined by U.S. Circuit Judges Richard L. Nygaard and Theodore A. McKee, said “one concern noted by the Supreme Court was that, as a part of the wholly unprecedented broad coverage of the CDA, ‘the “community standards” criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.”‘ COPA suffers from the same problems, Garth said. “We are not persuaded that the Supreme Court’s concern with respect to the ‘community standards’ criterion has been sufficiently remedied by Congress in COPA,” Garth wrote. Justice Department lawyers insisted that Congress specifically heeded the Supreme Court’s decisions that dealt with community standards. But Garth said the attempt to adhere to previous cases fell flat since, unlike other media, “the Web is not geographically constrained.” Web publishers, he said, “are without any means to limit access to their sites based on the geographic location of particular Internet users.” As soon as information is published on a Web site, Garth said, it is accessible to all other Web visitors. Current technology, he said, “prevents Web publishers from circumventing particular jurisdictions or limiting their site’s content from entering any [specific] geographic community.” COPA is unconstitutional because it uses “contemporary community standards” to gauge whether material is “harmful to minors,” Garth said. “The inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech,” Garth wrote. But while Congress has failed a second time, Garth suggested that, with technological advances, it may one day be able to pass a law that protects children from Internet smut and passes constitutional muster. “We are forced to recognize that, at present, due to technological limitations, there may be no other means by which harmful material on the Web may be constitutionally restricted, although, in light of rapidly developing technological advances, what may now be impossible to regulate constitutionally may, in the not-too-distant future, become feasible,” he wrote. Garth also said the Court of Appeals wanted to “approvingly reiterate” sentiments expressed by Reed about how unpleasant a task it is to strike down laws designed to protect children. Reed wrote: “Sometimes we must make decisions that we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”

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