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Kiddie smut law shot down again

Janet Reno's frustration mounts

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The Third US Circuit Court of Appeals in Philadelphia let stand a lower court decision which found the Child Online Protection Act (COPA) so broad that it could affect virtually any Web site, requiring only that some prosecutor somewhere find some bit of content potentially "harmful to minors".

The suit against the COPA was originally brought by the American Civil Liberties Union (ACLU) in the Fall of 1998. In February of 1999 US District Judge Lowell Reed issued a preliminary injunction preventing the government from enforcing it. Finally, the US Department of Justice (DoJ) appealed the injunction, and, as we learned Thursday, failed to persuade the court.

The appellate court's ruling states that "because the standard by which COPA gauges whether material is 'harmful to minors' is based on identifying 'contemporary community standards', 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".

"We will affirm the District Court's grant of a preliminary injunction because we are confident that the ACLU's attack on COPA's constitutionality is likely to succeed on the merits."

The question now is in which forum the 'attack' will continue. The DoJ can petition the US Supreme Court to rule, or ask that the case be sent to Judge Reed for trial, or drop it and let the ACLU win.

Option three is distinctly un-Renolike; her DoJ does not graciously concede defeat, and probably won't now, in spite of the fact that it's stuck defending a ridiculously defective law.

Option two has its charm in terms of expedience, but since Judge Lowell has already signalled his considerable reluctance to tread on the First Amendment, this could result in a bad outcome for the government and further trudging up the food chain.

The Register's money is on an appeal to the Supreme Court, though whether they would condescend to hear it before the intermediate steps are exhausted is anyone's guess.

And a direct appeal would not necessarily work in the Department's favour. The Rehnquist Court has demonstrated a palpably Draconian tendency in matters of law and order, all right; but it has also demonstrated a most fundamentalist inclination in cases of free speech. The DoJ will face a daunting uphill climb wherever its case is heard, and ultimately risks a very high-profile and humiliating public defeat.

Considering the prickly Constitutional issues attaching to this case, and the overall weakness of the COPA as law, the smart and gentlemanly thing would be for the DoJ to let it drop quietly; but Janet Reno, we have observed on numerous occasions, is most definitely not a gentleman. ®

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