COPA Decision Due by End of the Month

Rhett Pardon
WASHINGTON, D.C. – Within the next three weeks, the U.S. Supreme Court will decide what to do with the Child Online Protection Act, or COPA.

The decision will have high impact for all online adult operators, as the justices weigh whether COPA violates the First Amendment to the U.S. Constitution.

COPA, which was signed into law in 1998, seeks to restrict minors’ access to harmful material that is commercially distributed through the web. The law places strict civil and criminal punishments on any commercial web publisher who violates it.

But COPA also tries to protect web publishers from prosecution if they enact age-verification safeguards, such as requiring a credit card number or a digital certificate.

Enactment of COPA has been held up after the American Civil Liberties Union and various other individuals, entities and organizations filed suit seeking a preliminary injunction.

The ACLU and others claimed that COPA’s requirements would limit adults’ First Amendment rights.

More than three months after the suit was filed, the U.S. District Court for the Eastern District of Pennsylvania accepted the ACLU’s argument and granted the injunction. In its decision, the federal court held that COPA did indeed impose “a burden on speech that is protected for adults."

A 3rd U.S. Circuit Court of Appeals affirmed that ruling, claiming COPA’s definition of "material harmful to minors," which relies on "community standards" to determine if the material is "designed to appeal to … the prurient interest" of those under 17, places too great of a burden on First Amendment rights.

The federal appeals court said that because the web does not have geographical boundaries, its publishers can’t control where their material is read or viewed, and they therefore have no way of preventing material from entering a community that would deem it offensive.

That court decided that under COPA, publishers would have to cater to the most puritan communities by censoring material its members would find offensive, even if more liberal communities may consider it acceptable.

The high court granted to take on the case. But almost a year later, it ruled that COPA was not unconstitutional simply because it used "community standards" to dictate material harmful to minors. But the Court prohibited the federal government from enforcing COPA until the appeals court examined the case more fully.

Considering factors other than "community standards," the 3rd Circuit unanimously affirmed its prior ruling, once again enjoining COPA on First Amendment grounds.

"The burden that COPA would impose on harmless material accompanying such single images causes COPA to be substantially over-inclusive," the court reasoned, concluding that COPA’s definition of "minor" is also significantly over-inclusive because "the type of material that might be considered harmful to a younger minor is vastly different … than material that is harmful to a minor that is just shy of 17 years old."

The ruling explained that a website that deals primarily with medical information, but that publishes a column on sexual matters, could be liable under COPA.

The court also ruled that COPA’s defenses from prosecution would deter adults from viewing constitutionally protected speech.

With that ruling, the federal government appealed to the U.S. Supreme Court to defend COPA. The government argued that COPA’s reach is limited to businesses that seek to profit from material that is "harmful to minors" as "a regular course" of their business.

In its brief opposing Supreme Court review, the ACLU said that studies have shown that up to 75 percent of web surfers won’t give up personal information to web sites and that 65 percent of web users wouldn’t even do it for money.

But the long, stormy path of COPA could conclusively be decided as the high court winds down its 2003-04 court term by the end of the month.

The case is John Ashcroft, Attorney General vs. American Civil Liberties Union, et al, No. 03-0218.