Supreme Court Grants Certiorari in COPA Case
October 14, 2003. The Supreme Court granted petitions for writ of certiorari in Ashcroft v. ACLU, No. 03-218. See, Order List [15 pages in PDF] at page 2. This will be the second time for the Supreme Court to consider the Child Online Protection Act (COPA), which bans sending to minors over the web material that is harmful to minors. On March 6, 2003 the U.S. Court of Appeals (3rdCir) issued its opinion [59 pages in PDF] holding the COPA unconstitutional on first amendment grounds.
The COPA provides, in part, that "Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both."
The COPA further provides that "It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors ... by requiring use of a credit card, debit account, adult access code, or adult personal identification number ... by accepting a digital certificate that verifies age; or ... by any other reasonable measures that are feasible under available technology."
The COPA is now codified at 47 U.S.C. § 231.
The COPA was enacted into law in 1998. It was a reaction to the Supreme Court decision holding unconstitutional the Communications Decency Act (CDA). Unlike the CDA, which banned all internet indecency, the COPA only affects the web, only affects commercial communications, and only restricts material that is harmful to minors.
The COPA is based upon S 1482 (105th Congress), introduced by former Sen. Dan Coats (R-IN). However, the final language was that of HR 3783 (105th), sponsored by Rep. Mike Oxley (R-OH). The bill was passed as part of the Omnibus Appropriations Act for FY 1999. President Clinton signed this bill on October 21, 1998. See, TLJ story titled "Internet and Tech Bills Become Law", October 22, 1998.
The ACLU and other interest groups promptly filed a complaint in U.S. District Court (EDPenn) challenging the constitutionality of the COPA. See, TLJ story titled "ACLU Files Suit Challenging the Child Online Protection Act", October 23, 1998.
In the first round, the District Court issued a preliminary injunction on First Amendment grounds, and the Court of Appeals affirmed. The Supreme Court then vacated and remanded to the Third Circuit.
On May 13, 2002, the Supreme Court issued its opinion [54 pages in PDF] upholding the constitutionality of the community standards component of the COPA. It wrote that "This case presents the narrow question whether the Child Online Protection Act's (COPA or Act) use of ``community standards´´ to identify ``material that is harmful to minors´´ violates the First Amendment. We hold that this aspect of COPA does not render the statute facially unconstitutional."
The Supreme Court wrote that "The scope of our decision today is quite limited. We hold only that COPA's reliance on community standards to identify ``material that is harmful to minors´´ does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below. While respondents urge us to resolve these questions at this time, prudence dictates allowing the Court of Appeals to first examine these difficult issues." (Emphasis in original.)
The Supreme Court also noted that the Attorney General did "not ask us to vacate the preliminary injunction entered by the District Court, and in any event, we could not do so without addressing matters yet to be considered by the Court of Appeals. As a result, the Government remains enjoined from enforcing COPA absent further action by the Court of Appeals or the District Court."
Then in this second round, the Third Circuit, on remand, again affirmed the
District Court injunction, but on different grounds. It held that "the District
Court did not abuse its discretion in granting the plaintiffs a preliminary
injunction on the grounds that COPA, in failing to satisfy strict scrutiny, had
no probability of success on the merits. COPA is clearly a content-based
restriction on speech. Although it does purport to serve a compelling
governmental interest, it is not narrowly tailored, and thus fails strict
scrutiny. COPA also fails strict scrutiny because it does not use the least
restrictive means to achieve its ends. The breadth of the ``harmful to minors´´
and ``commercial purposes´´ text of COPA, especially in light of applying
community standards to a global medium and the burdens on speech created by the
statute’s affirmative defenses, as well as the fact that Congress could have,
but failed to employ the least restrictive means to accomplish its legitimate
goal, persuade us that the District Court did not abuse its discretion in
preliminarily enjoining the enforcement of COPA." The Appeals Court also held
that the COPA is overbroad.