The Big Question: Does the U.S. government have the authority to impose criminal penalties against anyone who posts information on the Internet deemed "harmful to minors"?
Communications Decency Act: The Communications Decency Act of 1996 was struck down by the U.S. Supreme Court in ACLU v. Reno (1997). The bill would have imposed a potential two-year prison sentence, and up to $200,000 in fines, against anyone posting "indecent" material online.
What is Indecency?: Indecency is anything that can't be broadcast on public TV airwaves during hours when children might be watching--including strong profanity, explicit description of sexual acts, and nudity. Indecency does not include any exceptions for material of a redeeming nature, so literary profanity, or medical nudity, would be just as indecent as any other kind of profanity or nudity.
The Child Online Protection Act (COPA): In ACLU v. Reno (1997), the Supreme Court found that the "indecency" standard was too broad. Legislative moralists turned to new legislation in 1998, the Child Online Protection Act (COPA), which President Bill Clinton promptly signed. The newer bill, if enforced, would ban content deemed "harmful to minors," with a $50,000 fine and up to a six-month prison sentence attached.
What is "Harmful to Minors"?: Content deemed "harmful to minors" is indecent content that, "taken as a whole, (lack) serious literary, artistic, political, or scientific value for minors." But because the content must be seen as possessing redeeming value for minors, there is probably little difference in practice between the indecency standard and the "harmful to minors" standard. Both standards, for example, would ban George Carlin's Seven Dirty Words routine and Janet Jackson's nipple.
Where Does the Bill Stand Now?: It was subject to an injunction almost immediately in 1998 (meaning that it cannot be enforced), and has bouncing around in the federal court system for eight years as justices and attorneys have debated fine points of Internet filtering technology. Before addressing the question of whether the "harmful to minors" standard is overly broad, the Supreme Court wishes to resolve the issue of whether there are less restrictive means of protecting minors from content deemed harmful.
So What Happens Next?: The case, ACLU v. Gonzales, is now under review by a federal district judge in Philadelphia. It is highly likely that this judge will deem the "harmful to minors" standard overly broad. If the federal government appeals the case all the way to the U.S. Supreme Court, a final ruling could potentially come as early as next year--but 2008 is more likely.
Will the Bill Survive?: Almost certainly not. ACLU v. Reno (1997) was, in effect, a 9-0 ruling against the Communications Decency Act's anti-indecency provision, and seven of the nine justices specifically declared the "indecency" standard to be overly broad (the other two reserved judgment on that question, claiming that the new law could be deemed unconstitutional for other reasons).
Separated at Birth?: Make sure not to confuse the Child Online Protection Act (COPA) of 1998 with the Children's Internet Protection Act (CIPA) of 2000. COPA is a genuinely frightening and blatantly unconstitutional bill, but CIPA, which merely allows the government to mandate Internet filters in public libraries, was found constitutional by the Supreme Court in 2003.
