BROOKE GLADSTONE:
Closing arguments are set for this Monday in ACLU versus Gonzales, the latest chapter in the long embattled history of the Child Online Protection Act, or COPA, passed in 1998.

Under the law, child-unfriendly content would be placed behind a virtual wall, and users would have to supply a credit card number or otherwise verify their age in order to view it. Websites like Salon, an edgy online news magazine, and Nerve, which serves up a kind of highbrow erotica, argue that such a wall would deter readers and effectively shut them down – only COPA has never been enforced.

For the past eight years, the law has bounced around the judicial system, struck down on constitutional grounds by the higher courts and remanded back to the district level, where it now lies in what may be its death throes – if the American Civil Liberties Union gets its way.

Kerry Howley, an associate editor at Reason magazine, has followed the case, and joins us now. Welcome to the show.
KERRY HOWLEY:
Thanks for having me.
BROOKE GLADSTONE:
So laws like COPA often are a product of their times, right?
KERRY HOWLEY:
Mm-hmm [AFFIRMATIVE].
BROOKE GLADSTONE:
In this case it was the late '90s, when the Internet was relatively young and the climate was nervous.
KERRY HOWLEY:
Exactly. Looking back over the transcripts of the trial, the thing that jumps out most to me is just how dated this law was, how it's really a product of another time. It's a throwback. It was a time when the Internet was a relatively scary thing. It was something that children often knew more about than their parents.

And there's an iconic cover of Time Magazine that really captures this. In 1995, they released a cover featuring a maybe three-year-old boy staring into a computer screen wide-eyed, and his face was sort of bathed in a blue glow from the screen. And the cover said, "Cyberporn" in these great block letters.
BROOKE GLADSTONE:
[LAUGHS] Reason magazine is a libertarian magazine [LAUGHS] and –
BROOKE GLADSTONE:
[LAUGHTER]- would certainly take the position almost every time that the government should stay out of this sort of thing.
KERRY HOWLEY:
Mm-hmm [AFFIRMATIVE].
BROOKE GLADSTONE:
But if you're a parent, it is pretty awful out there.
KERRY HOWLEY:
It is. It is.
BROOKE GLADSTONE:
And you shouldn't worry about that.
KERRY HOWLEY:
I'm not sure that you shouldn't worry. I am sure that the best approach is communication, not this impossible Herculean task of keeping your children from information, passing silly laws.
BROOKE GLADSTONE:
So when a law is challenged in court, there's often a kind of Talmudic dissection, sometimes word by word, of the language of the law. What does COPA really say?
KERRY HOWLEY:
Well, COPA says that commercial distributors of material harmful to minors need to put that material behind some kind of wall.
BROOKE GLADSTONE:
So let's break that down word by [LAUGHS] word. What does the law mean by "harmful?"
KERRY HOWLEY:
And that's a good question. I don't think anyone really knows what that means. According to the law, the average person applying contemporary community standards would find, taking the material as a whole, and with respect to minors, is designed to appeal to or is designed to pander to the prurient interest.
BROOKE GLADSTONE:
Or, quote, "lacks serious literary, artistic, political or scientific value for minors." I don't even want to ask what they mean [LAUGHS] by "serious."
KERRY HOWLEY:
That's incredibly vague and subjective, just as the concept of pornography itself is quite subjective.
BROOKE GLADSTONE:
So let's begin with how the government is arguing its case. You've noted that the lead attorney with the Justice Department, Eric Beane, employed a novel strategy in his opening statement. [KERRY HOWLEY LAUGHS] Could you read what he said in court?
KERRY HOWLEY:
Sure. He warned the judge – remember, this isn't a jury trial, it's only a judge – he said, "It's important not to let this trial become a purely intellectual exercise. It's important not to become emotionally detached."
BROOKE GLADSTONE:
Well, what is he actually saying there? He's exhorting the judge to stay emotional about it?
KERRY HOWLEY:
To stay emotionally involved with the issue of pornography and as it relates to children, which generally people do have quite visceral, strong reactions to. I think he's understandably afraid that this trial will be about facts, about statutes.
BROOKE GLADSTONE:
About amendments, maybe?
KERRY HOWLEY:
About amendments. And it's very hard to maintain this sort of hysteria in that kind of atmosphere. And in his opening statement, Beane planned to use six hard-core images plucked from the vast array of Internet smut.
BROOKE GLADSTONE:
So let's move to the ACLU's attorney, Chris Hansen.
KERRY HOWLEY:
Hansen, in his opening statement, which was before Beane's, pointed out that four of the six images that Beane would be presenting were actually from overseas. Now, the law is designed to shield kids from pornography, but, of course, it can't do that, because the United States legislature can only shut down sites within the United States. So 50% of the pornography that's out there, that's generated overseas, it will have no effect on.
BROOKE GLADSTONE:
Oh!
KERRY HOWLEY:
Which really speaks to how ineffectual the law is, even for its intended purpose, whether it's constitutional or not.
BROOKE GLADSTONE:
Now, what the ACLU has said, in fact, critics of these kinds of laws since they were first presented, have always said, is that this is a family responsibility, a parental responsibility, and there are good filters that you can use to protect kids from this really smutty stuff on the Web. The government counters that parents won't use those filters.
KERRY HOWLEY:
Yes, the government has really been hitting on the idea that we can't rely on these because not only are they ineffective, but parents are unlikely to know how to use them. One of the arguments was that kids understand how to keep them from working and parents don't understand how to install them.

I actually think that there's some merit to that argument. Private filters are clumsy, but they're not nearly as clumsy as COPA.
BROOKE GLADSTONE:
Kerry, thank you very much.
KERRY HOWLEY:
Thanks for having me.
BROOKE GLADSTONE:
Kerry Howley is associate editor of Reason magazine.