Huge Sighs of Relief Heard By Adult Web Entrepreneurs (Click on Header to Download Case)

Content Based Prohibition Sent To Trial


Today the Supreme Court affirmed (in a 5 to 4 vote) the unconstitutionality of COPA (Child Online Protection Act) because the statute -- likely violates the First Amendment. An injunction filed in Pennsylvania against COPA’s enactment is allowed to stand pending a full trial on the merits. Let's hope a jury in the Federal Trial court puts COPA down for good.

IN SUM: Blocking and filtering software are a 'less restrictive alternative' on speech at the 'receiving end, not universal restrictions at the source.' The Supreme Court found COPA’s effectiveness diminished not only because it’s requirements did not prevent minors from accessing 'foreign harmful materials' or tricking the system by providing their own credit cards to gain access here but also because it would simply move US providers of 'harmful material' overseas.

Had COPA stood, adults would have had to identify themselves or provide their credit card information to gain access to certain speech online. The seeping definitions of prohibited speech and activities under COPA are quite choaking. If COPA stands it would apply to 'material that is harmful to minors' defined as:

'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 com-
munity 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.” §231(e)(6).

The focus of COPA is on those 'engaged in the business' of such material defined as:

'means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person’s trade or business.

COPA = Child Online Protection Act (COPA). 112 Stat. 2681–736, codified at 47 U. S. C. §231. The specific requirements are as follows:

'(A) by requiring use of a credit card, debit account,
adult access code, or adult personal identification
number;
(B) by accepting a digital certificate that verifies age,
or
(C) by any other reasonable measures that are feasi-
ble under available technology.' §231(c)(1).

In addition, Congress enacted 18 USCA 2252B which prohibits 'misleading Internet domain names to prevent Web site owners from disguising porn Web sites in a 'way likely to cause uninterested persons to visit them.' So do not think Congress is a one trick pony on this issue by any means.

This is the second trip to the US Supreme Court for COPA. In Ashcroft I, 535 US at 585, the US Supreme Court reversed a Third Circuit Court of Appeals finding that COPA’s 'community standards language rendered the statute unconstitutionally overbroad.' In that case, the Supreme Court in Ashcroft I limited their decision to a finding that the language 'did not, standing alone, make the statute unconstitutionally overbroad.' The case was sent back to the District Court. The Third Circuit again affirmed the District Court of Pennsylvania’s Injunction but this time concluded that the 'statute was not narrowly tailored to serve a compelling Government interest and was not the least restrictive means available… to serve the interest of preventing minors from using the Internet to gain access to materials that are harmful to them.' It was this second affirmation that landed COPA in the Supreme Court this time.

Justice Thomas’ earlier decision saved the day (A shocker!): This Court found comfort in an earlier decision. Quoting at page 12, 'The closest precedent on the general point is our decision in Playboy Entertainment Group. Playboy Entertainment Group, like this case, involved a content-based restriction designed to protect minors from viewing harmful materials. The choice was between a blanket speech restriction and a more specific technological solution that was available to parents who chose to implement it. 529 U. S., at 825. Absent a showing that the proposed less restrictive alternative would not be as effective, we concluded, the more restrictive option preferred by Congress could not survive strict scrutiny.' Quoting Justice Thomas’ concurring decision in Playboy: 'In the instant case, too, the Government has failed to show, at this point, that the proposed less restrictive alternative will be less effective. The reasoning of Playboy Entertainment Group, and the holdings and force of our precedents require us to affirm the preliminary injunction. To do otherwise would be to do less than the First Amendment commands. The starch in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.' Id., at 830.



COPA is Congress’ second attempt to 'make the Internet safe' for minors by criminalizing certain Internet speech. See the Communications Decency Act of 1996. The CDA failed because CDA “it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available.'