Federal Internet Law & Policy
An Educational Project
Children's Online Protection Act
Constitutional Challenge
Dont be a FOOL; The Law is Not DIY
- Statute
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- COPA Commission

- 1st Amendment
- Internet Freedom
- Children, Protection
- - COPA
- - CIPA
- - CPPA
- - Child Porn
- - Child Porn, Reporting
- - Protect Act
- - V Chip
- - Deceptive Content
- - Sex Offenders
- - Privacy
- Filters
- - Notification
- SPAM Labels
- Taxes
- Reports
- Obscenity
- Annoy
- Good Samaritan Defense
- Notes

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

Appellate Court PDF

District Court Trial on the Facts

US Supreme Court

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

US Supreme Court

Court of Appeals for the Third Circuit

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