3rd Circuit Holds COPA Unconstitutional

July 22, 2008. The U.S. Court of Appeals (3rdCir) issued its opinion [57 pages in PDF] in ACLU v. Mukasey, a long running challenge to the constitutionality of the Child Online Protection Act (COPA), which is codified at 47 U.S.C. § 231. The Court of Appeals affirmed the judgment of the District Court, which held that the COPA facially violates the First and Fifth Amendments of the Constitution, and permanently enjoined enforcement of the COPA.

This relates back to efforts by the Congress in the 1990s to impose broad federal regulation of internet content. The Congress's first attempt was the Communications Decency Act (CDA), which was made a part of the Telecommunications Act of 1996. The Supreme Court promptly, and unanimously, held that it was unconstitutional in 1997. See, opinion in Reno v. ACLU, 521 U.S. 844.

The Congress reacted with a more tailored approach in 1998 with the COPA.

The COPA bans sending to minors over the web material that is harmful to minors. The COPA also allows web site operators to distribute pornography, but requires those web sites which distribute material that is harmful to children to verify adult status through the use of credit cards, adult access codes, adult PIN numbers, or other technologies.

Litigation commenced in 1998, and enforcement of the statute has been enjoined pending outcome of the litigation, which has dragged on for nearly a decade.

Statute. The basic prohibition of the bill is this: "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 ..."

The COPA defines the term "material that is harmful to minors" to be "any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that (A) 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; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

Legislative History. The Congress enacted the COPA in 1998. It was HR 3783, which was made a part of the Omnibus Appropriations Act for FY 1999, which President Clinton signed into law on October 21, 1998.

The primary authors and sponsors of this legislation were Rep. Mike Oxley (R-OH), Rep. James Greenwood (R-PA), Rep. Thomas Bliley (R-VA), and Sen. Dan Coats (R-IN). All have since left the Congress.

For further TLJ coverage of the drafting, debate and passage of the COPA, see:
Hearing on Internet Indecency, 2/10/98.
Blocking Bills Introduced in Congress, 2/12/98.
Internet Bills Approved by Committee, 3/12/98.
Gore on Safe Schools Internet Act, 3/24/98.
Istook Bill Requires Net Filters, 7/2/98.
Filtering Bill Passes Senate Committee, 7/22/98.
Senate Passes 'CDA II' and 'Safe Schools Internet Act', 7/26/98.
House Subcommittee Adopts Child Online Protection Act, 9/21/98.
House Committee Passes Child Online Protection Act, 9/25/98.
Rush Backs CDA II & Condemns Release of Starr Report, 9/25/98.
House Passes Child Online Protection Act, 10/8/98.
Congress and White House Debate Anti-Porn Bill, 10/16/98.
Internet and Tech Bills Become Law, 10/22/98.

Litigation History. The ACLU filed a complaint in U.S. District Court (EDPenn) challenging its Constitutionality on October 22, 1998. See, TLJ story titled "ACLU Files Suit Challenging the Child Online Protection Act", October 23, 1998. The action was initially styled ACLU v. Reno. The name of each succeeding Attorney General has been substituted since then: Ashcroft, Gonzales, and Mukasey.

(See also, Amended Complaint [PDF], filed in 2004.)

The District Court issued a preliminary injunction of the COPA in 1999, at F. Supp. 2d 473. In a previous opinion, the Court of Appeals affirmed in 2000, at 217 F.3d 162.

On May 13, 2002, the Supreme Court issued an opinion in ACLU v. Ashcroft, 535 U.S. 564, in which it upheld 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." However, it also vacated and remanded to the Court of Appeals.

On March 6, 2003 the U.S. Court of Appeals (3rdCir) issued its second opinion, reported at 322 F.3d 240. It again affirmed the District Court, and held the COPA unconstitutional on First Amendment grounds. See, story titled "Third Circuit Rules in COPA Case" in TLJ Daily E-Mail Alert No. 619, March 10, 2003.

On October 14, 2003, the Supreme Court granted certiorari a second time. See, story titled "Supreme Court Grants Certiorari in COPA Case" in TLJ Daily E-Mail Alert No. 758, October 15, 2003.

On June 29, 2004, the Supreme Court issued a 5-4 opinion in ACLU v. Ashcroft, 542 U.S. 656. The Supreme Court affirmed the issuance of the preliminary injunction, and again remanded to the District Court. See also, stories titled "Supreme Court Affirms Preliminary Injunction of COPA" in TLJ Daily E-Mail Alert No. 928, June 29, 2004, and "COPA Sponsor Addresses Supreme Court Decision" in TLJ Daily E-Mail Alert No. 929, June 30, 2004.

On March 22, 2007, the District Court issued its opinion holding that the COPA violates the First and Fifth Amendments, and enjoining its enforcement. See, 478 F. Supp. 2d 775.

And now, the Court of Appeals has affirmed this judgment of the District Court.

Court of Appeals Holding. The Court of Appeals wrote that "Because COPA is a content-based restriction on protected speech, it is presumptively invalid and the Government bears the burden of showing its constitutionality."

The Court of Appeals then applied strict scrutiny analysis. That is, "To survive strict scrutiny analysis, a statute must: (1) serve a compelling governmental interest; (2) be narrowly tailored to achieve that interest; and (3) be the least restrictive means of advancing that interest."

Under this test, the Court of Appeals found the COPA lacking. First, it wrote that the government "has a compelling interest to protect minors from exposure to harmful material on the Web".

However, it held that the COPA approach is not narrowly tailored to achieve that interest. For example, it concluded that the statute not only penalizes web publishers for making available material that is harmful to minors, it also penalizes them for making available material to adults that is protected speech.

The Court also wrote that other aspects of the statute (the commercial purpose language, and the affirmative defenses) fail the narrowly tailored prong of the strict scrutiny test.

Next, the Court of Appeals also held that the COPA fails the third prong of the strict scrutiny test. It is not the least restrictive means to advance the compelling interest of protecting minors.

That is, there is also blocking and filtering software. It wrote that "We agree with the District Court's conclusion that filters and the Government’s promotion of filters are more effective than COPA."

The Court of Appeals continued that "Given the vast quantity of speech that COPA does not cover but that filters do cover, it is apparent that filters are more effective in advancing Congress’s interest, as it made plain it is in COPA. Moreover, filters are more flexible than COPA because parents can tailor them to their own values and needs and to the age and maturity of their children and thus use an appropriate flexible approach differing from COPA's ``one size fits all´´ approach. Finally, the evidence makes clear that, although not flawless, with proper use filters are highly effective in preventing minors from accessing sexually explicit material on the Web."

Finally, the Court of Appeals held that the COPA is unconstitutional under both vagueness and overbreadth analysis.

Reaction. John Morris of the Center for Democracy and Technology (CDT) stated in a release that "Throughout the history of legal challenges to COPA, we have argued that the most effective way to protect children online, and the means least restrictive of free expression, is to give families the resources to control what their children see and do online ... This empowers parents, respects the First Amendment and acknowledges the diverse sensibilities of American families."

See also, amicus curiae brief [46 pages in PDF] of the CDT, Computer & Communications Industry Association (CCIA), Information Technology Association of America (ITAA), and other internet, publishing, content, journalism and library groups.

The ACLU's Chris Hansen stated in a release that "The government has no more right to censor the Internet than it does books and magazines."

This case is ACLU, et al. v. Michael Mukasey, U.S. Court of Appeals for the 3rd Circuit, No. 07-2539, an appeal from the U.S. District Court for the Eastern District of Pennsylvania, D.C. No. 98-cv-05591, Judge Lowell Reed presiding. Judge Greenberg wrote the opinion of the Court of Appeals, in which Judges Ambro and Chagares joined.

See also, the Electronic Privacy Information Center's (EPIC) web page on this litigation, and the ACLU's COPA web page.