It was announced yesterday by the American Civil Liberties Union that the Supreme Court will not be hearing the outgoing Bush administration’s case against the Child Online Protection Act (COPA). Mukasey v. ACLU sought to appeal rulings against COPA, which has been enacted since 1998.

COPA specifies a fine of up to USD $50,000 and/or up to 6 months’ imprisonment for the transmission of “any material that is harmful to minors” unless there is payment required to access it, or some sort of pass code. “Intentional” violation of the law carried penalties as well. More to the point, COPA defined “harmful to minors” as anything “communicated” that is “obscene” or that which is “designed to appeal to, or is designed to pander to, the prurient interest.” These “prurient interests” are to be judged according to “contemporary community standards.” The law gets a little more precise when it states that material which “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 material that “taken as a whole, lacks serious literary, artistic, political or scientific value for minors” is a no-go. Makes sense to this author.

However, with all the commercial transactions that are regularly taking place online today, there were bound to be some parties who had their toes stepped on, and not just purveyors of kiddy porn who have moved their offices from back alleys to online shops.

Patricia Nell Warren, of Wildcat Press, was one of the plaintiffs in the suit, and she had this to say about the law as it was written: “[These] two bills were supposedly aimed at hard-core porn but they were so broadly written that they would be used to criminalize the commercial provision of all kinds of legitimate content to minors on the Internet, whether health information or literature. And such laws definitely would be used by ultraconservatives to limit availability of LGBT content on the Web. For this reason, we felt that it was important for us, as a gay-owned small press, to participate in these lawsuits. The Philadelphia Gay News was also involved. The Supreme Court decision puts the onus where it belongs — on parents, who have the right to use software filters to try keeping their minor kids from viewing material that they disapprove of.”

The ACLU, for its part, is trumpeting the Supreme Court’s decision not to hear the COPA case as a win for free speech. The ACLU Legal Director Steven R. Shapiro is quoted as saying “[The] government has no right to censor protected speech on the Internet, and it cannot reduce adults to hearing and seeing only speech that the government considers suitable for children.”

 As with all things on the Internet this area is patently gray, and it is only a matter of time before the next case that pushes someone’s (or some community’s) envelope comes along and we go through this all again. In the mean time, Reputation.com recommends that parents monitor what their kids are looking at online, and who they are interacting with on the internet. The best defense is a good offense, and keeping ahead of the ‘net is a good habit that all people, young and old, need to develop.