The following is the full text of the opening argument made by ACLU attorney Chris Hansen in the COPA trial.
This, your honor, is about free speech. It is about the First Amendment, and the First Amendment has always been controversial throughout the nation's history. More particularly, every time a new technology comes into existence, people become concerned that the speech that will take place over that new technology will somehow be abusive or frightening or scary. As a result, every time there is a new technology there is a move, to censor that new technology. We are talking here about moves to censor speech on the internet.
It began with the Communication Decency Act in the mid-'90s. Congress passed COPA in the late '90s. COPA, of course, is a criminal statute. It provides criminal punishment, both imprisonments and fines. It is a content-based restriction of speech that is, by definition, valuable, at least for adults, speech that is, by definition, constitutionally protected, at least for adults, given the legal standard that the court is to apply in this case is whether the government has compelling interest in the purposes of the law, and whether the law is narrowly tailored to achieve those purposes.
The case will not primarily be about the compelling-interests part of that test. The plaintiffs recognize that the Supreme Court has said on a number of occasions that there is a compelling interest in protecting minors from certain kinds of speech about sex. It is worth saying a couple of things about the compelling issue before we turn to narrowly tailored material, which is where the heart of this case is.
There is no other medium of communication that has a federal criminal harmful-to-minors law. It is not a crime to engage in harmful-to-minors speech in books, magazines or leaflets. It is not a crime to engage in harmful-to-minors speech on radio, on records, on movies, on videos or even, indeed, on broadcasts or cable TV. In all of those instances, there is either no federal law at all or the federal approach to regulating harmful-to-minors speech or similar speech has been regulatory, not criminal. Approximately half of the states have no harmful-to-minors law at all.
There are obscenity laws, and much of the discussion in this case will turn on the nature of obscenity laws and whether or not harmful-to-minors is necessary in light of obscenity laws. But it is worth noting that the federal government does not vigorously enforce the obscenity law, casting doubt on the sincerity of its claim that it needs to protect minors about speech about sex.
Fewer than one-tenth of one percent of all federal prosecutions are for obscenity. Indeed, government opposed the passage of COPA to Congress on the grounds that it already had the tools to use to protect children from speech about sex. And yet they are not using those tools.
But, as I say, the primary issue here is not compelling government interest. The primary issue is a less restrictive alternative and narrow tailoring. And in that connection, there are essentially three overarching factual issues that will be presented to the court.
First, is there valuable speech at risk under the statute that is either criminalized or chilled as a result of that statute?
Second, are there less restrictive, more narrowly tailored alternatives to COPA that can be used to protect children, for those parents who believe their children need not be protected from this kind of speech?
And finally, the third overarching factual dispute between the parties is, do the defenses contained in COPA resolve the otherwise existing problems with the statute?
So I'll talk first about the valuable speech that is at risk under COPA. As I said, all of the speech that is criminalized under COPA is constitutionally protected speech for adults, as a matter of definition. The speech that is affected is speech on the internet. The vast majority of the speech on the internet is provided for free and without any restriction.
Internet speakers do that for two reasons. First, it is a business decision. The primary method of business on the internet these days is advertising, and they want people to come to their websites without restrictions so that they will see the ads that they are running.
But second, and equally important, it is a matter of principle. Most speakers on the internet, including all of the plaintiffs and all of the speaker witnesses that you will hear from, do not restrict access to their speech because they believe their speech is important. As a matter of principle, they want their speech to be as widely read as can possibly be.
The speech that you will hear about covers a wide variety of topic areas. Say, for sex information, gay and lesbian speech, online magazines and other things, all of which are of unquestioned value. Now because the speech is, in our view, of unquestioned value, the defendants have covered that it is not covered by COPA and plaintiffs need not worry about COPA. Let's look at that a little more closely.
All of our clients engage in speech that easily meets the prurient prong of 231(e)(6)(a). All of it is sexually explicit. Indeed, much of it is designed for erotic purposes. All of it depicts, describes or represents actual or simulated sexual actors or sexual contact, actual or simulated normal or perverted sexual actors or a lewd exhibition of the genitals or post-pubescent breast as provided in 231(e)(6)(b). All of the plaintiffs' speech and all of the chilled witnesses' speech fit those two categories without any real serious question. The only thing that is left in terms of plaintiffs, in terms of the definition, is whether it has value or not.
231(e)(6)(c) says, in order for the speech to be harmful to minors, it must be found to lack value for minors. It is more than a little difficult to know what it is that lacks value for minors. It's largely an untested concept, brand new to the federal criminal statute and frankly determining what has value for adults but does not have value for minors is more than a challenging task.
The question then is whether it is reasonable for the plaintiffs to feel chilled. The answer: the evidence will show that it is reasonable.
First, your honor will hear from Professor Reichman, who will talk about the innumerable instances all over the country in which people try to suppress speech about sex, speech significantly more harmless than that provided by the plaintiffs in the name of protecting children. There are very significant and large segments of our country that believe that most speech about sex needs to be protected from children.
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