3rd Circuit Invalidates Child Online Protection Act

On July 22, 2008, a unanimous panel of the United States Court of Appeals for the 3rd Circuit struck down the Child Online Protection Act (COPA) in ACLU v. Mukasey, holding that COPA failed to withstand strict scrutiny under the First Amendment and represented an impermissibly vague and overbroad restriction of speech. COPA threatened to chill Internet speech by providing civil and criminal penalties for anyone who knowingly posts “material that is harmful to minors” on the Internet “for commercial purposes.”

The case was filed the day after COPA became law in 1998 and was originally called ACLU v. Reno. A series of decisions in the case prevented COPA from ever taking effect—and today's decision improves the chances that it never will. It has been the subject of two previous Supreme Court decisions, and may be reviewed a third time. The decision and the Supreme Court’s response will greatly affect producers and posters of online content, particularly those who post "adult-oriented" material, or indeed any material that is sexual in nature.

A highly restrictive law

COPA was enacted after the Supreme Court invalidated even more sweeping restrictions on Internet speech contained in the Communications Decency Act, which attempted to extend indecency regulation to the Internet. COPA attempted to target a somewhat narrower range of speech prohibiting the unrestricted posting of any material deemed “harmful to minors.”

While courts have upheld prohibitions of legally obscene speech (i.e., material that is obscene as to an adult audience), COPA defined “material that is harmful to minors” to include material that would be obscene from the standpoint of a minor but not the standpoint of an adult—a category that would encompass certain “indecent” but non-obscene speech. The wide range of ages contemplated by the term “minor”—which could include young children as well as teenagers—added to the potential scope of material that could be deemed “harmful to minors.”

COPA includes limited affirmative defenses that could be invoked by a Web publisher that restricts access to “material that is harmful to minors” by requiring the use of a credit card or through other means to verify that a user is not a minor. Such mechanisms, however, could also have the effect of deterring adults from accessing online content.

A victory for voluntary filtering

The 3rd Circuit applied strict scrutiny to the law and held that COPA's civil and criminal penalties are not the least restrictive means of protecting minors from supposedly harmful but non-obscene Internet content—instead, it cited extensive findings from the District Court that voluntary filtering by parents presents a viable and far less restrictive avenue.

The 3rd Circuit noted that “filters permit adults to determine if and when they want to use them,” and thereby empower parents—rather than the government—to control what content children can access. Likening voluntary filtering to a “belt” and COPA's scheme of punishment to “suspenders,” the court stated: “[I]f the belt works at least as effectively as the suspenders, then the Government cannot prosecute people for not wearing suspenders.”

The latest installment—but probably not the last

The COPA litigation has spanned nearly a decade, and today's decision marks the third time the 3rd Circuit has heard the case, which the Supreme Court has ruled on twice. The prior 3rd Circuit and Supreme Court decisions involved a preliminary injunction against enforcement of COPA, and these decisions set the parameters for the recent decision by underscoring that the First Amendment prohibits draconian methods of enforcement when effective and voluntary filtering is available.

The recent decision came to the 3rd Circuit on appeal from a permanent injunction against enforcement of COPA entered by the District Court after a bench trial.

Given that the 3rd Circuit's recent decision renders a federal statute inoperative and that the Supreme Court has already considered the case twice, the government will likely petition the Supreme Court to review the decision.