In Victory for Adult, High Court Rejects COPA

Rhett Pardon
WASHINGTON, D.C. — The online adult industry escaped a potential punishing blow Tuesday as U.S. justices ruled that a law meant to punish pornographers who peddle adult material to web-surfing kids is probably an unconstitutional restraint on free speech.

The Supreme Court, 5-4, said an appeals court was correct to block the Child Online Protection Act, or COPA, from taking effect because it likely violates the First Amendment.

Los Angeles attorney Gregory A. Piccionelli told XBiz the ruling can be viewed as a major setback for Attorney General Ashcroft’s war on porn.

"But COPA is not the only arrow in his quiver, by a long shot," Piccionelli said. "The government can still prosecute online adult entertainment businesses under the federal obscenity statutes, the Racketeer Influenced and Corrupt Organizations Act [RICO], the federal record keeping and labeling laws and the deceptive domain name provisions of the Protect Act."

The justices said there may have been important technological advances in the five years since a U.S. judge blocked the law and that it represented “a serious chill upon protected speech"

The majority, led by Justice Anthony M. Kennedy, sent the COPA case back to a lower court for a trial that could give the federal government a chance to prove the law does not go too far.

Justices John Paul Stevens, Clarence Thomas, David H. Souter and Ruth Bader Ginsburg agreed with Kennedy.

COPA never took effect, but it would have authorized fines up to $50,000 for the crime of placing material that is "harmful to minors" within the easy reach of children on the Internet.

The American Civil Liberties Union challenged COPA immediately in 1998, arguing the law in its many different forms is unconstitutional. 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.

ACLU lawyer Ann Beeson praised the ruling.

"The status quo is still with us and the court made it safe for artists, sex educators and web publishers to communicate with adults without risking jail time," she said.

But Pat Trueman of the Family Research Council told XBiz that his organization is profoundly disappointed.

"With spam emails and pop-up ads littering the Internet, it is easy to see how a child could unwittingly end up on a pornographic website," Trueman said. "It is not too much to ask that web users who want to access commercial pornographic content prove they are adults."

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