Federal Appeals Court Again Finds Child Online Protection Act (COPA) Unconstitutional
The U.S. Court of Appeals for the 3rd Circuit yesterday struck down the Child Online Protection Act (COPA) for the second time.1 In 2000, the 3rd Circuit affirmed a preliminary injunction against enforcement of COPA on very narrow grounds. On appeal from that decision, the Supreme Court last year rejected those narrow grounds but left the preliminary injunction in place pending the 3rd Circuit’s decision on remand.
COPA was enacted in 1998 and imposes criminal and civil penalties on anyone who makes communications “for commercial purposes” through the World Wide Web that includes material that is both available and harmful to minors.2 47 U.S.C. § 231(a)(1). Congress attempted to define material “harmful to minors” in such a way as to allow COPA to avoid the fate of the Communications Decency Act (CDA), which was found to violate the First Amendment by the Supreme Court in 1997 because of its overbreadth. Relying on the three-part Miller test established by the Supreme Court in 1973, Congress defined obscene material and communications as “harmful to minors” if (1) the average person, applying “contemporary community standards,” would find the material designed to appeal to the “prurient interest” when taken as a whole and with respect to minors; (2) the material depicts, in a manner “patently offensive” with respect to minors, actual or simulated sexual acts or lewd exhibitions of human anatomy; and (3) the material lacks serious literary, artistic, political, or scientific value for minors when taken as a whole.
In its earlier opinion, the 3rd Circuit affirmed a district court grant of a preliminary injunction on very narrow grounds involving only the application of the first-part of the Miller test. The Court then held that having to apply “contemporary community standards” to COPA was alone a sufficient basis to strike down the statute because the Internet can be received everywhere. As such, it subjected website operators “even in the most tolerant communities to the decency standards of the most puritanical.” However, the Supreme Court reversed that earlier decision by an 8-1 vote, finding 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.”
In yesterday’s decision on remand, the 3rd Circuit conducted a more comprehensive review of COPA than in its earlier decision, but again found a number of its provisions to be “constitutionally infirm.” The court applied the “strict scrutiny” test for content-based restrictions and found three aspects of COPA not sufficiently narrowly tailored to meet the government’s compelling interest in protecting minors from harmful material. Those three aspects are (1) COPA’s definition of “material harmful to minors,” (2) COPA’s definition of “commercial purposes,” intended to limit the persons to whom the statute would apply; and (3) the affirmative defenses available to web publishers. The Court concluded that COPA failed the strict scrutiny test because it did not utilize the least restrictive means to achieve the government’s goals.
The court first addressed COPA’s definition of “material harmful to minors,” which requires an assessment of whether the material appeals to a minor’s prurient interests “when taken as a whole.” The court explained that the material COPA requires to be considered “as a whole” are “any communication, picture, image file, article, recording, writing, or other matter of any kind.” (emphasis in original). The court interpreted this as requiring that “each individual communication, picture, image, exhibit, etc. be deemed ‘a whole’ by itself in determining whether it appeals to the prurient interests of minors.” The court concluded that in the Internet context, Congress’ intent runs afoul of the First Amendment because it requires examination of an exhibit in isolation, rather than in context. An examination of an item in its full context (such as a nude image in a collection of Renaissance artwork) could negate the “prurient appeal.” The definition of “material harmful to minors” in COPA was therefore held not sufficiently narrowly tailored to achieve its purpose.
The 3rd Circuit next found that the definition of “commercial purposes” would “subject too wide a range of web publishers to potential liability.” It reasoned that the overly broad definition would apply to a Web publisher who placed any material harmful to minors on its website, regardless of whether it made a profit from doing so or whether posting the material was a principal part of its business. Moreover, it would also apply to a web publisher who only seeks advertising revenue to offset the costs of operating a free content website. The court also found the definition too broad in that it could subject a web publisher to liability even where material posted that is deemed harmful to minors is an “infinitesimal part of a publisher’s entire Web site.”
The court then concluded that the affirmative defenses available to Web publishers under COPA were too burdensome. In particular, the court found that most Web users are unwilling to provide personal information to view content when that content is “sensitive or controversial.”
Finally, the 3rd Circuit concluded that COPA fails strict scrutiny because it does not employ the least restrictive means available to meet the government’s compelling interest in protecting minors. The court determined that blocking and filtering software would be at least as effective as COPA in preventing minors’ access to harmful material online without COPA’s burdens on speech for adult viewers. In rejecting the government’s arguments that filtering and blocking software placed too much of a burden on parents, the 3rd Circuit relied on the Supreme Court’s Playboy decision. In Playboy, the Supreme Court struck down a statutory provision that required cable operators to completely block certain sexually oriented programming because there was a less restrictive alternative—parents could contact the cable operator to request blockage. The 3rd Circuit also stated that there might be other less restrictive alternatives to prevent children’s access to harmful material, such as tagging or domain name zoning.
This decision is the latest judicial blow to Congress’ attempts to regulate indecency on the Internet. It is likely, however, that this decision will be appealed and that the case will come before the Supreme Court yet again. A copy of the 3rd Circuit’s decision, titled American Civil Liberties Union v. Ashcroft, is available at http://www.ca3.uscourts.gov/opinarch/991324.pdf. Please contact us if you would like additional information.
1 Technically, the decision only affirms a preliminary injunction against enforcement of COPA issued by the Eastern District of Pennsylvania in 1999. In so doing however, the court has determined that “the ACLU will likely succeed on the merits in establishing that COPA is unconstitutional.”
2 The Act specifically exempts telecommunications carriers, Internet Service Providers (ISPs), and search engines, and provides affirmative defenses for others who take reasonable measures in good faith to restrict access by minors, including through the use of a credit card or digital certificate for age verification purposes.