United States Supreme Court Upholds Injunction Against Enforcement of the Child Online Protection Act (COPA) and Remands for a Second Time

By a 5-4 margin, the United States Supreme Court has, once again, left in place the preliminary injunction granted in 1998 against enforcement of the Child Online Protection Act (COPA). The Court remanded the case for trial to finally resolve the constitutional challenges to legislative restrictions on dissemination over the Internet of material that is harmful to children. In Ashcroft v. American Civil Liberties Union, the Court again found that Congress was overbroad in its effort to protect children from harmful speech by prohibiting legitimate and protected adult speech as well and using a potentially ineffective but nonetheless excessive means of doing so. As a result, COPA will continue to remain in limbo while the lower courts struggle with First Amendment challenges to governmental restrictions on harmful speech, and in particular, whether there are less restrictive and possibly more effective means of protecting children online.

COPA was Congress’s second attempt to legislatively prohibit the online communication of sexually explicit materials to children. The first such attempt, the Communications Decency Act, was struck down by the Supreme Court in 1997 on First Amendment grounds in Reno v. American Civil Liberties Union. Congress passed COPA in an attempt to rectify the Reno constitutional infirmities by incorporating the Court’s 1973 Miller test for obscenity into the definition of material that is “harmful to minors.” COPA prohibits online communication, for commercial purposes, of material that is available and harmful to minors. 47 U.S.C. § 231. Such online communications would trigger criminal and civil penalties under COPA, unless made by an ISP, search engine, or common carrier for the provision of telecommunications / Internet services, or unless otherwise within the terms of a specific safe harbor affirmative defense. However, before COPA ever took effect, a federal district court issued a preliminary injunction against its enforcement. That injunction was affirmed by the Third Circuit and subsequently appealed to the Supreme Court, which, although it disagreed with the grounds put forth by the Third Circuit, refused to vacate the injunction and remanded the case for further consideration. On remand, the Third Circuit again affirmed the district court’s injunction.

The subsequent appeal to the Supreme Court of that affirmance here resulted in the injunction being affirmed yet again, but as before, on slightly different grounds than those relied upon by the Third Circuit. The affirmance in the Supreme Court also calls for a remand to the district court for trial and a final determination of the constitutionality of the government’s justification for legislative restrictions on online communications. The Court emphasized that the government will have the burden of showing that there are no other alternative and less restrictive means of protecting children from harmful material online, such as filtering software. Given technological advances made in the intervening years, the Court noted that while filtering software is “not a perfect solution to the problem of children gaining access to harmful-to-minors material,” it may be a “more effective” measure and “less restrictive” on speech, than the provisions in COPA that require users to affirmatively provide credit card information, digital certificates or make other representations in order to access potentially harmful Internet sites. The decision is also significant because it represents a split, among the justices, regarding whether COPA could be construed narrowly to apply to only truly “obscene” materials that receive no protection, thus preserving COPA’s constitutionality – an argument put forth by three dissenting justices.

Privacy and protection of children are two of the major issues confronting providers of Internet communications. While COPA’s significant privacy protections were not at issue in this appeal, content providers and ISPs alike have been sparring with the government over the necessary levels of protection when the government and private parties use subpoenas and other means to gain the identity of pornographers and Internet denizens suspected of content violations. Although the impact of the decision here is a continuation of the existing six-year injunction prohibiting enforcement of COPA, the decision nonetheless constitutes a significant loss for the government because, as the dissent notes, “[a]fter eight years of legislative effort, two statutes, and three Supreme Court cases the Court sends this case back to the District Court for further proceedings.”

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