COPA Held Unconstitutional (Again)
The Third Circuit wrote the latest chapter today in the ongoing saga of the Child Online Protection Act (COPA), a law that Congress passed in 1998 to replace the Communications Decency Act, which the Supreme Court declared unconstitutional in 1997. In general terms, COPA prohibits commercial websites from publishing material "harmful to minors" (even if that material is not obscene) without making a good faith effort to prevent anyone younger than 17 from viewing it. Requiring a credit card would be an example of a good faith effort.
The law was promptly enjoined by a district court because it seemed likely to abridge First Amendment rights. That decision was affirmed by the Third Circuit, but the Supreme Court disagreed with the Third Circuit's narrow decision. The case went back to the Third Circuit, which again agreed with the district court. Another trip to the Supreme Court produced a 5-4 decision upholding the injunction on the ground that there are probably less restrictive ways of protecting minors, including filtering software, than criminalizing the distribution of "harmful" materials. [more ...]
The case then returned to the district court for a trial on the merits. The district court found COPA unconstitutional and entered a permanent injunction. The government again appealed. Today, the Third Circuit affirmed the injunction.
The ACLU's Chris Hansen, a First Amendment lawyer for the rights group, applauded the decision. "For years the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional," Hansen wrote in a statement. "The government has no more right to censor the internet than it does books and magazines." ...The ACLU, suing on behalf of Salon magazine sexualhealth.com and the owner of the Urban Dictionary website, successfully argued that the law criminalizes constitutionally protected speech, would drive pornography sites to non-U.S. servers, and prevent the spread of health information due to people's unwillingness to register to read sensitive information. They also argued the law would apply to anyone who wrote about mature subjects who also happened to have Google or Yahoo ads on their personal blog.
The Third Circuit held that COPA impermissibly limits more speech than is necessary to protect minors from harm. The court also noted that COPA does not apply to foreign websites, which account for half of the pornography on the web, and is therefore an ineffective means of protecting children, who will simply view foreign porn rather than American porn. Filtering software is a more effective alternative that is less restrictive of First Amendment rights since parents can choose to turn it on or off to protect their children.
The court was unimpressed with the requirement that websites obtain age verification given the ease with which kids can circumvent the requirement (a credit card number, after all, doesn't prove the age of the person who typed it in). On the other hand, age verification would chill the exercise of free speech because some adults who want to access information on the web would decline to do so because they don't want to disclose their credit card or drivers license numbers, or because they want to preserve their anonymity.
The Justice Department is not pleased with the decision and is reviewing its options, according to spokesman Charles Miller.
The decision is here (pdf).
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