It's Not Quite COPA-cetic

Frederick Lane
Few technologies have spurred Congress to such rapid action as the Internet. The first great surge in popularity for the Internet occurred in late 1994 and early 1995, with the release of the graphical browser Mosaic (the predecessor of Netscape Navigator). By Christmas 1995, Congress had already drafted and adopted a bill, the Communications Decency Act, which was intended to make it a felony to transmit "indecent" materials across the Internet.

No one was ever prosecuted for violating the CDA. On the day it was scheduled to take effect, it was challenged in federal court by a wide array of free speech advocates, including the American Civil Liberties Union and the American Library Association.

Sixteen months later, in a somewhat surprising but encouraging decision, the U.S. Supreme Court unanimously struck down the CDA in broad and unequivocal terms. "We agree," Justice John Paul Stevens wrote, "with the district court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses [offered by the government] do not constitute the sort of 'narrow tailoring' that will save an otherwise patently invalid unconstitutional provision. The CDA ... threatens to torch a large segment of the Internet community."

Undeterred by the Supreme Court's emphatic dismissal of the CDA, social conservatives in Congress went back to the drawing board and drafted the Child Online Protection Act, or COPA. In an effort to avoid the First Amendment concerns that torpedoed the CDA, lawmakers decided to base COPA on state laws that prohibit the distribution of material that is "harmful to minors."

Specifically, COPA prohibits an individual or entity from knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, making any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.

Under COPA, whether material published on the web is "harmful to minors" is governed by a three-part test, each element of which must be satisfied before a judgment can be sustained:

  • 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;
  • 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,
  • Taken as a whole, lacks serious, literary, artistic, political, or scientific value for minors. 47 USC § 231(e)(6).

Individuals who violate the provisions of COPA could be fined $50,000 and jailed for up to six months. In addition, if an individual is convicted of intentionally violating COPA, he or she can be fined up to $50,000 per violation, with each day counting as a separate violation. A convicted COPA violator can also be assessed a civil fine of up to $50,000 per day.

The law creates an affirmative defense for webmasters who restrict access to individuals under the age of 17 by "requiring use of a verified credit card, debit account, adult access code, or adult personal identification number or in accordance with such other procedures as the Commission [on Child Online Protection] may prescribe."

On Oct. 21, 1998, President Bill Clinton signed COPA into law. The law was scheduled to go into effect on Nov. 21, 1998, but again, a coalition of plaintiffs filed suit against the law that same day, and the U.S. District Court in Philadelphia issued a temporary restraining order prohibiting the law's enforcement. The same court later concluded that COPA is unconstitutional, a decision that was upheld by the 3rd U.S. Circuit Court of Appeals.

The Supreme Court overturned the 3rd Circuit's decision in May 2002, saying that the appeals court had not properly considered the reasons set out in the trial court's decision. After hearing arguments on the case again, the 3rd Circuit reaffirmed its decision, holding that COPA is in fact unconstitutional. Once again, the Supreme Court agreed to hear an appeal of the 3rd Circuit's decision, and oral arguments were held before the high court in February 2004.

In June 2004, the Supreme Court upheld the 3rd Circuit decision that COPA is unconstitutional. Although the Court continued its practice of striking down content-based restrictions on Internet activity, COPA was by far the closest decision. Only five justices — Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Clarence Thomas — agreed that the law goes too far. The four remaining justices — William Rehnquist, Antonin Scalia, Sandra Day O'- Connor and Steven Breyer — dissented from the majority's opinion.

'Protected Speech'
The central issue in the COPA case involves the extent to which "protected speech" can be regulated by the government. As all of the courts have noted, one of the effects of COPA is to make the distribution of "protected speech," i.e., speech that is legal and should be available to adults, more difficult. When defending legislation that would limit adult access to protected speech, the burden is on the government to show that it has a compelling reason for adopting the legislation and that its proposed solution is the least restrictive alternative to achieving its goal.

The U.S. government argued that it has a compelling interest in protecting children from exposure to inappropriate materials, an argument with which all three courts agreed. However, as Kennedy made clear in his majority opinion, the government failed to demonstrate that COPA is the least-restrictive means for accomplishing its goal.

"The primary alternative considered by the district court was blocking and filtering software," Kennedy wrote. "Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them. The district court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the government had not shown it would be likely to disprove the plaintiffs' contention at trial.

"Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed."

Kennedy also noted that COPA will block less objectionable material than filters, because COPA does not apply to websites outside of the United States. By contrast, filtering software blocks incoming material at the site where the material is received, regardless of the location from which it was originally sent. Finally, the court noted that the Commission on Child Online Protection, a blue-ribbon commission created by COPA itself, also reached the conclusion that filters are a more effective tool for protecting children than age-verification systems like those contemplated by COPA.

For people whose livelihood depends on the distribution of sexually explicit materials online, the comments of the four dissenters were sobering. Breyer, who was joined by Rehnquist and O'Connor, argued that COPA should be upheld because it would only apply to a small amount of material that is not already considered to be obscene and thus not entitled to protection anyway. The three justices were willing to accept a "modest" restriction on protected speech in order to satisfy the governmental goal of protecting children.

Far more extreme was the position of Scalia, who argued in his separate dissent that COPA was constitutional because commercial pornography could be banned in its entirety without violating the First Amendment. Given that view, he saw no problem with COPA's "lesser restrictions."

Closeness Of Vote
Even more significant than the closeness of the vote is the fact that the court for the first time did not simply strike down a content-restricting law, but instead sent it back to district court for additional proceedings. By doing so, the Supreme Court left open the possibility that the government might be able to prove that COPA is the least restrictive means of protecting children, although Kennedy made it clear that the Court thinks it is unlikely. As Kennedy pointed out, Congress has passed two other statutes that might themselves constitute less restrictive alternatives — the Protect Act and the Dot-Kids Initiative. In addition, the passage of time since the district court first heard COPA may have led to the invention of new technologies that would address the same concerns as COPA.

The court expressly noted that its decision should not be read as a bar to any restrictive Internet legislation by Congress. However, it is clear that in the trial court, Congress will be held to a high standard in showing that its legislation is the least restrictive means of protecting children.

Frederick Lane is an expert witness, author of "Obscene Profits" (Routledge, 2000) and "The Naked Employee" (Amacom, 2003), and co-founder of Tech Law Seminars, an in-house training and seminar company focusing on legal and social developments sparked by new technology. For additional information, visit