COPA Ruling Affirmed by 3rd Circuit Court of Appeals

Tom Hymes
PHILADELPHIA — The 3rd Circuit Court of Appeals has upheld a 2007 lower court ruling that found the 1998 Child Online Protection Act (COPA) unconstitutional, setting the stage for a possible government appeal to the U.S. Supreme Court.

According to industry attorney and Free Speech Coalition Board Chair Jeffrey J. Douglas, however, today’s decision was so impeccably researched and written that he believes it was at least partially intended to convince the Supreme Court to deny certiorari.

“It is a beautifully written opinion,” Douglas told XBIZ. “I have to believe the 3rd Circuit intended the decision to be bullet-proof, and the end of the line for COPA.”

Even if today’s ruling does signal an end to COPA’s 10-year sojourn between the various branches of the federal court system, it is unlikely Congress will forgo future attempts to control access to adult content on the Internet. COPA was the second attempt by the government to pass a law that regulated online pornography. The first was the Communications Decency Act of 1996 (CDA), which was partially overturned in 1997.

The day after COPA became law in 1998, the plaintiffs in the case filed suit seeking an injunction barring its enforcement. In February 1999, the district court preliminarily enjoined the law, pending a trial on the merits. The government appealed that ruling, and the 3rd Circuit upheld the lower court’s order in 2000, finding that “the ‘community standards’ language in section 231(e)(6)(A) by itself rendered COPA unconstitutionally overbroad.”

The government then sought and received certiorari, and the Supreme Court in 2002 vacated the 3rd Circuit decision, ruling that “the ‘community standards’ language did not, standing alone, make the statute unconstitutionally overbroad.”

The case was remanded back to the 3rd Circuit, with ruled in 2003 that, for a variety of reasons, “COPA was not narrowly tailored to serve the government’s compelling interest in preventing minors from being exposed to harmful material on the Web, was not the least restrictive means available to effect that interest, and was substantially overbroad. Consequently, we again affirmed the District Court’s order granting the preliminary injunction.”

The government again sought and received certiorari, and in 2004 the Supreme Court affirmed the 3rd Circuit decision but remanded the case back to the district court for a trial on the merits. The district court was directed to evaluate new technological developments and account for any changes in the legal landscape, and also to determine whether Internet content filters are more effective than enforcement of the COPA restrictions or whether other possible alternatives are less restrictive and more effective than COPA in effectuating Congress’ intent.

In March 2007, the district court concluded, “COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) COPA is not narrowly tailored to the compelling interest of Congress; (2) defendant has failed to meet his burden of showing that COPA is the least restrictive and most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad.” The court enjoined the government from enforcing COPA.

The government then appealed that ruling back to the 3rd Circuit, which ruled today in support of the district court’s findings.

“In sum,” the opinion concluded, “COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional. We reach our result both through the application of the law-of-the- case doctrine to our determination in ACLU II and on the basis of our independent analysis of COPA and would reach the same result on either basis standing alone. For the foregoing reasons, we will affirm the district court’s March 22, 2007 order.”

Today's opinion also quotes generously from the district court ruling on the increased efficacy of Internet filters, as well as its finding that none of the various age verification technologies and products currently on the market, such as credit cards, debit accounts, adult access codes, adult personal identification numbers and data verification services, are as effective as filters in meeting the government's goal of protecting minors from inappropriate content on the Internet.

The court also affirmed its earlier problems with COPA's definition of "minors."

"We found that “COPA’s definition of the term ‘minor,’ viewed in conjunction with the ‘material harmful to minors’ test, is not tailored narrowly enough to satisfy the First Amendment’s requirements,” the court wrote. "We stated that the term 'thus applies in a literal sense to an infant, a five-year old or a person just shy of age seventeen.' We reasoned that “'Web publishers would face great uncertainty in deciding what minor could be exposed to its publication, so that a publisher could predict, and guard against, potential liability.'”

According to Douglas and industry attorney Louis Sirkin, both of whom are deeply involved with cases that involve Internet-related issues, today’s ruling could beneficially impact a slew of cases currently ongoing, including the Extreme Associates case and the Max Hardcore and John Stagliano/Evil Angel cases, all of which contain charges related to Internet “distribution” of adult content.

“This is really exciting,” Sirkin told XBIZ. “We’ve been making these arguments for years regarding the definition of ‘community’ on the Internet and the ‘taken as a whole’ provision, and now we have this decision to bolster what we’ve been saying all along.”

Sirkin pointed to another free speech decision by the 3rd Circuit striking down a law that criminalized the sale of depictions of animal cruelty, as well as the decision to overturn the $550,000 fine imposed on CBS for the infamous Janet Jackson ‘nipple slip,” all of which mark “a very exciting few days for the First Amendment.”

“It’s given us great stuff to talk about with Max [Hardcore] and John [Stagliano]. The COPA and the animal cruelty cases also pay great homage to Ashcroft v. Free Speech Coalition, and have reignited my thrill with that decision with respect to the affirmative defense and leaving alone protected speech.

“I also hope there’s acknowledgment of this [ruling], because the 3rd Circuit, at least with COPA, has been upheld twice. And I don’t think that Justices Roberts and Alito are enough to make any changes to these rulings. I just hope for everybody’s sake that we don’t get a significant change in the makeup of the court anytime soon.”

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