Cybertelecom Federal Internet Law & Policy An Educational Project

Children's Online Protection Act Constitutional Challenge

Not everyone was impressed by the reshuffling of Supreme Court language in order to reincarnate the CDA. Before COPA could become effective, the ACLU once again sued and was once again successful in enjoining enforcement in a federal district court. The ACLU brought suit on behalf of web site owners and operators who produce content concerning "obstetrics, gynecology, and sexual health; visual art and poetry; resources designed for gays and lesbians; information about books and stock photographic images offered for sale; and online magazines." This website owners expressed concern that while they produced content appropriate and legitimate for adults, such content could be deemed to be harmful to minors and thus subject them to prosecution under COPA.

Picking up on a theme from the CDA, the Appeals Court made its decision on the narrow holding that COPA's use of community standards was necessarily over restrictive and could not be applied to the Internet. Again, the problem is that material available anywhere on the Internet is simultaneously available everywhere. Thus, to permit a community standard of material harmful to minors to be applied to the Internet would in effect make Internet content restricted by the "most puritan" jurisdiction in the United States. In other words, material posted anywhere in the US would necessarily be posted in the most conservative community; if that most conservative community found the material to be "harmful to minors," then, regardless of where posted, the content creators would be subject to criminal sanction. Thus, according to the lower Court, the "community standard" could not possibly be applied to the Internet.

The Supremes concluded, "sure it can." In a plurality opinion (meaning that while they majority voted the same way, they did not necessarily do it for the same reasons) looked back to old technology such as the US Mail and dial-a-porn. The Supremes concluded that since "community standards" can be applied to people using the US mail, it can likewise be applied to the Internet (although the Court failed to explain how it could be applied to the Internet). Justice Thomas stated "If a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards." Some of the Justices suggested in their separate statements that the advent of the Internet necessitates the creation of a national community standard.

The Supremes rejected the decisions of the Appeals Court, but did not reverse the injunction (this meant in effect that COPA was still unconstitutional but no one at the time knew why). The Supremes remanded the decision back down to the Appeals Courts for further consideration.

The Appellate Court re-reviewed the case, and much to everyone's surprise, concluded that it had gotten it right the first time. The rationale this second time was that where the articulated government interest was protecting the minds of the youth of America from specific content, imposing restrictions and threats of criminal sanction of commercial websites was not the least restrictive means of achieving that end. Instead, the Court pointed to filtering software as a more viable and effective means of protecting children's access to harmful material, that would be a least restrictive means of achieving the governmental goal.

This time the Supreme's affirmed the decision of the lower courts.

The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them. The District Court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the Government had not shown it would be likely to disprove the plaintiffs’ contention at trial. Ibid.

Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify them-selves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

[Ashcroft v. ACLU II, slip op. 8-9.]

But it's not over yet. All this litigation was about the preliminary injunction. The Supreme's affirmed that the preliminary injunction, blocking enforcement of COPA on the grounds that the plaintiffs would likely prevail, was proper. However the case before the district court has yet to see a full trial. The Supreme's in their decision remanded the case back down to the district court for completion of the case pursuant to their findings. [UPDATE: The lower court has affirmed that COPA is unconstitutional and enjoined enforcement].

Previous: COPA as Passed

Constitutional Challenge

Supreme Court

• Jan 21, 2009: Sup Ct denies cert. It appears to be over. COPA appears to be dead.
• Petition for cert filed by USDOJ on October 29, 2008
• Ding Dong, COPA Is Dead, Techdirt 1/21/2009
• Supreme Court Ends 10-Year Government Quest for Censorship Bill, CDT 1/21/2009
• Ten years of futility: COPA finally, truly dead, Ars Technica 1/21/2009
• U.S. top court won't revive online pornography law, Globe and Mail 1/21/2009
• Supreme Court rejects federal bid to restore Internet child safety law, CW 1/21/2009
• Supreme Court deals death blow to antiporn law, CNET 1/21/2009
• After 10 Years, an Infamous Internet-Censorship Act is Finally Dead, EFF 1/21/2009

Appellate Court PDF

• Courts Hand Yet Another Defeat to COPA, CDT 9/16/2008
• COPA anti-Net porn law: Down but not out, CNET 7/24/2008
• Court Affirms Online Content Law Unconstitutional, NYT 7/24/2008
• Once Again: Court Says That COPA Anti-Porn Law Is Unconstitutional, Techdirt 7/24/2008
• Orgies and apple pie: Google Trends used in obscenity case, Ars Technica 6/24/2008
• Using Google Trends To Determine 'Community Standards' Of Obscenity, Techdirt 6/24/2008
• Reporting from the front lines: the COPA oral argument, CDT 6/13/2008
• U.S. eyes updating 1998 Web porn law, Globe and Mail 6/13/2008
• CDT Files Brief Calling for the Overturning of COPA on Free Speech ., CDT 11/13/2007
• Brief Filed Challenging COPA on Free Speech Grounds, CDT 10/31/2007
• United States will appeal Child Online Protection Act ruling, Student Press 6/15/2007

District Court Trial on the Facts

• ACLU v. Gonzales (March 2007) Copy
• "At issue in this case is the constitutionality of the Child Online Protection Act , 47 U.S.C. § 231 ("COPA") and whether this court should issue a permanent injunction against its enforcement due to its alleged constitutional infirmities. COPA provides both criminal and civil penalties for transmitting sexually explicit materials and communications over the World Wide Web ("Web") which are available to minors and harmful to them. 47 U.S.C. § 231(a). After a trial on the merits, for the reasons that follow, notwithstanding the compelling interest of Congress in protecting children from sexually explicit material on the Web, I conclude today that COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not narrowly tailored to Congress' compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad. As a result, I will issue a permanent injunction against the enforcement of COPA. "
• Judge overturns Internet child protection law, Webwerald 3/23/2007
• Court Rejects Law Limiting Online Pornography, NYT 3/23/2007
• COPA held unconstitutional (yet again), Internet Cases 3/23/2007
• Oct 2006: District Court Trial begins - government argues that Internet filters dont work (contradicting its own arguments in the CIPA litigation)
• Having affirmed the preliminary injunction, the case has been sent back down to the trial court for a trial on the facts.
• ACLU: DOJ's defense of COPA inconsistent, CW 11/21/2006
• Lawyers argue validity of '98 online law, USA Today 11/21/2006
• COPA re-examination underway in Philadelphia, CW 10/24/2006

US Supreme Court

• Jun 29 2004 Ashcroft v ACLU: Held: The Third Circuit was correct to affirm the District Court's ruling
  that enforcement of COPA should be enjoined because the statute likely violates the First Amendment.  The Court noted that filtering technology appears to be a least restrictive means of achieving the goal of the government. Affirmed and remanded, noting that upon full evidence of the effectiveness of filters and the status of technology, it is theoretically possible that the district court could affirm the constitutionality of COPA.
• Mar 2 Ashcroft v. ACLU, Oral Argument before Sup. Ct.
• Supreme Court rules porn law unconstitutional, CNET 6/29/2004
• Justices Leave Online Porn Case Unresolved, Wash Post 6/29/2004
• Court Bars Enforcement of Internet Porn Law, Reuters 6/29/2004
• High court to revisit online-porn law, MSNBC 10/14/20
• Supreme Court gets second chance to study online porn law, CNN 8/14/03

Court of Appeals for the Third Circuit (March 2003) Opinion

• Court: COPA 'Unconstitutional', Internet News 3/7/03
• ACLU v Ashcroft - COPA, 3rd Cir 3/7/03
• US court rejects web porn law, Silicon 3/7/03
• Court Strikes Down Online Porn Law, AP 3/7/03

US Supreme Court

• Ashcroft, V. American Civil Liberties Union, No. 00 1293, 535 US 564, __ S.Ct. __ (May 13, 2002).
• Held: " COPA’s reliance on “community standards” to identify what material “is harmful to minors” does not by itself render the statute substantially overbroad for First Amendment purposes. The Court, however, expresses no view as to whether COPA suffers from substantial overbreadth for reasons other than its use of community standards, whether the statute is unconstitutionally vague, or whether the statute survives strict scrutiny. Prudence dictates allowing the Third Circuit to first examine these difficult issues. Because petitioner did not ask to have the preliminary injunction vacated, and because this Court could not do so without addressing matters the Third Circuit has yet to consider, the Government remains enjoined from enforcing COPA absent further action by the lower courts. " Vacated and Remanded
• Supreme Court transcript pdf 
• First Amendment Center: Case Summary
• Oral argument November 28, 2001
• US DOJ's Petition of Cert (Feb 2001)
• Briefs in Supreme Court Case
• ACLU Brief | Press Release September 2001
• Members of the the Internet industry
• Volunteer Lawyers for the Arts and People For the American Way
• National Coalition Against Censorship
• Dept of Justice
• Too Broad a Ban on Child Models?, Wired 5/10/02
• Supreme Court: Net Porn Law Not Too Broad, Reuters 5/13/02
• High court partially OK's online porn law, CNN 5/13/02
• Kid Smut Law Needs More Work, Wired 5/13/02
• Ashcroft v ACLU (COPA), S.Ct. 5/13/02
• Supreme Court Takes Hard Look At COPA, AP 11/28/01
• Justices Ponder Online Porn Law, NYT 11/28/01
• Porn law too harsh, critics say, CNEWS 11/28/01
• High court to consider online porn law, USAToday 11/28/01
• Court Weighs Online Porn Law and Free Speech, Wash Tech 11/28/01
• Supreme Court hears arguments on Net porn law, CW 11/28/01
• U.S. Supreme Court To Hear Internet Porn Cases, Washtech 10/1/01
• Supreme Court to consider Net porn law, USAToday 5/21/01
• Supreme Court To Review Child Porn Law, ZDNet 5/21/01
• Supreme Court Asked To Reverse COPA Ruling, Newsbytes 2/28/01

Court of Appeals for the Third Circuit

• ACLU v. Reno, 217 F.3d 162 (3rd Cir. 2000). PDF. VLS Copy : Pacer Copy : EPIC Copy :

  We will affirm the District Court's grant of a preliminary injunction because we are confident that the ACLU's attack on COPA's constitutionality is likely to succeed on the merits. Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of each particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability. Thus, because the standard by which COPA gauges whether material is "harmful to minors" is based on identifying "contemporary community standards" the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.

  In affirming the District Court, we are forced to recognize that, at present, due to technological limitations, there may be no other means by which harmful material on the Web may be constitutionally restricted, although, in light of rapidly developing technological advances, what may now be impossible to regulate constitutionally may, in the not- too-distant future, become feasible.

• CDT Amicus Brief
• U.S. Chamber-Internet Education Foundation Amicus Brief
• Anti-porn law back in court - COPA CNET 10/30/02
• Appeals Court Rejects Online Porn Control Law Newsbytes 6/23
• Court Says Anti-Smut Law Illegal Wired 6/23
• Appeals court nixes Net porn law USA Today 6/23

District Court: ACLU v. Reno, 31 F.Supp.2d 473 (EDPa 1999).

• "On October 22, 1998, the day after COPA was enacted, the American Civil Liberties Union ("ACLU") brought the present action in the United States District Court for the Eastern District of Pennsylvania, challenging COPA's constitutionality and seeking to enjoin its enforcement.13 After granting a temporary restraining order against enforcement of the law on November 20, 1998, the District Court held extensive evidentiary hearings which, on February 1, 1999, resulted in the entry of a preliminary injunction preventing the government from enforcing COPA."

  - Reno v. ACLU, 3rd Cir, Sec. I.C. slip at 13 ( June 22, 2000)

• EPIC COPA
• Judge: Net content law allows for "severe standards" C|NET 11/5/99
• COPA Goes Before the Bench Wired 11/4/99

Papers

• Sue Ann Mota, The U.S. Supreme Court Addresses The Child Pornography Prevention Act and Child Online Protection Act in Ashcroft v. Free Speech Coalition and Ashcroft v. American Civil Liberties Union, FCLJ 3/17/03

News

• Protecting Kids Online, USA Today 5/10/02
• Bush Nominates Former COPA Commish To Justice Post (Flores of National Law Center for Children and Families), Newsbytes 4/23/01