The publisher of the Philadelphia Gay News joins a flock of prominent online voices in a fight against censorship.
When Philadelphia Gay News publisher Mark Segal first heard about the Child Online Protection Act (COPA), an Internet censorship law that many believe would run roughshod over the First Amendment, he couldn't help but remember the 1980s.
"Back then our community had no other place to look for HIV/AIDS information on a regular basis," Segal says. "The nongay press didn't fully understand the research." Segal founded the PGN specifically because he felt a responsibility to inform the LGBT community of issues often overlooked by mainstream media. Now Segal believes COPA would put his mission in serious jeopardy.
For that reason the Philadelphia Gay News recently joined an ACLU lawsuit against COPA along with a veritable who's-who of online writers, publishers and activists--from websites like Salon.com and UrbanDictionary to individual writers like beat poet Lawrence Ferlinghetti.
"Because the name of the bill contains the word 'child' and the word 'online,' many mistakenly think this is about child pornography," says Catherine Crump, staff attorney with the ACLU. "The material COPA prohibits is any material that anyone in the most conservative community may think is harmful to minors."
A large section of the COPA law deals with definitions. Certain relative terms like "commercial purposes" (money is being earned) and "minor" (a person 17 or younger) must be specifically defined. But it's the section on the vague term "harmful to minors" that has upset some of America's most respected online voices.
The statute defines material harmful to minors as "any communication, picture, image, graphic image file, article, recording, writing or other matter of any kind that is obscene," but goes on to qualify the statement, referring to material that "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."
The law would also prohibit any material that "lacks serious literary, artistic, political or scientific value for minors."
"'Harmful to minors,' 'of the prurient interest' --no one knows what any of those terms mean," says ACLU staff attorney Chris Hansen. "What we do know is that there are large segments of the population who believe that any speech about homosex-uality or even sexual activity, except for abstinence, is inappropriate for minors."
Because the case is still under litigation, the Justice Department declined to comment for this story. But according to its brief, the term "harmful to minors" is well-defined by past Supreme Court rulings.
"Plaintiffs contend that this definition is 'hopelessly uncertain,'" the brief states. "Although some uncertainty may nevertheless exist regarding the precise application of this definition to specific material, the Supreme Court has never held that the First Amendment requires absolute certainty regarding what a jury may find obscene or harmful to minors."
Instead the Justice Department says the practical application and the "legislative history" of COPA limits its scope.
Salon.com doesn't agree. The website joined the lawsuit because of items collected in a congressional study of sexually related material pertaining to COPA. The brief speaks to its claims, saying, "plaintiffs cite excerpts from the website of plaintiff Salon, but the majority of the material collected there--ranging from articles about sexual experiences, to sexual cartoons, to images of nude or partially nude prisoners at Abu Ghraib--is plainly not 'harmful to minors,' either because it does not appeal to the prurient interest of minors or it has serious value for older minors."
The Justice Department defines older minors as over the age of 15. But this distinction appears nowhere in the original COPA statute. These definitions are again explained away through "practical application" and "legislative history"--ideas the ACLU and its plaintiffs don't place much stock in.
"Our clients do not find it comforting that the government says, 'We could prosecute you under the law but we won't; don't worry about it,'" Hansen says. "This is a criminal statute with criminal penalties, so if you're the Philadelphia Gay News and you don't know what's inappropriate under the law and you don't want to go to jail, what do you do? You start self-censoring."
For PGN, it might mean it wouldn't be able to report on safe sex, the problems of LGBT youth, drug problems in the LGBT community, hate crimes or even the activities of the religious right because someone may take offense. Because of civil penalties and provisions, the PGN could be open to countless frivolous lawsuits simply for producing a newspaper and publishing it on the Internet.
But for Mark Segal, the issue is bigger than potential obstacles in publishing. "We are by our very name an advocacy newspaper fighting for LGBT equality and a community platform," Segal says. He objects to any roadblocks LGBT teens and young adults face when seeking sexual health information.
"Any individual who is sexually active and has the knowledge to understand where to find information that will keep him or her healthy should not be denied that information," he says. "The opposite is a health catastrophe."
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