Citation Edit

American Civil Liberties Union v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999) (full-text), aff’d, 217 F.3d 162 (3d Cir. 2000) (full-text), vacated and remanded sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002) (full-text), aff’d on remand, 322 F.3d 240 (3d Cir. 2003) (full-text), aff’d and remanded, 542 U.S. 656 (2004) (full-text), judgment entered American Civil Liberties Union v. Gonzales, 478 F.Supp.2d 775 (E.D. Pa. 2007) (full-text), aff'd sub nom. American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3rd Cir. 2008) (full-text), cert. denied, __ U.S. __, 129 S.Ct. 1032 (2009).

Trial Court Proceedings Edit

The Child Online Protection Act COPA was scheduled to take effect on November 20, 1998, but a coalition of 17 civil liberties groups filed suit challenging it, and, on November 19, Judge Reed of the federal district court in Philadelphia, finding that there was a likelihood that the plaintiffs would prevail, issued a temporary restraining order against enforcement of the law. On February 1, 1999, he issued a preliminary injunction against enforcement pending a trial on the merits. The preliminary injunction applies to all Internet users (not just the plaintiffs in this case) and provides that, even if the law is ultimately upheld, the Administration may not prosecute online speakers retroactively.

In issuing the preliminary injunction, the district court found that “[i]t is clear that Congress has a compelling interest in the protection of minors, including shielding them from materials that are not obscene by adult standards.”[1] It also found, however, that “it is not apparent to this Court that the defendant can meet its burden to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors to this material.”[2] This is because “[t]he record before the Court reveals that blocking or filtering technology may be at least as successful as COPA would be in restricting minors’ access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or website operators.”[3]

In addition, “the sweeping category of forms of content that are prohibited — ‘any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind’ (emphasis added [by the court]) — could have been less restrictive of speech on the Web and more narrowly tailored to Congress’ goal of shielding minors from pornographic teasers if the prohibited forms of content had included, for instances, only pictures, images, or graphic image files, which are typically employed by adult entertainment websites as ‘teasers.’ In addition, perhaps the goals of Congress could be served without the imposition of possibly excessive and serious criminal penalties, including imprisonment and hefty fines, for communicating speech that is protected as to adults or without exposing speakers to prosecution and placing the burden of establishing an affirmative defense on them instead of incorporating the substance of the affirmative defenses in the elements of the crime.”[4]

Initial Appellate Court Proceedings Edit

On June 22, 2000, the U.S. Court of Appeals for the Third Circuit upheld the preliminary injunction, as it was “confident that the ACLU’s attack on COPA’s constitutionality is likely to succeed on the merits.”[5]

The Third Circuit affirmed on a different ground than the district court: “because the standard by which COPA gauges whether material is ‘harmful to minors’ is based on identifying ‘contemporary community standards’ the inability of Web publishers to restrict access to their websites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.”[6] This is because it results in communications available to a nationwide audience being judged by the standards of the community most likely to be offended.

Applying strict scrutiny, the Third Circuit concluded that, though “[i]t is undisputed that the government has a compelling interest in protecting children from material that is harmful to them, even if not obscene by adult standards,”[7] the government “may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations.”[8]

Initial U.S. Supreme Court Proceeding Edit

On May 13, 2002, the U.S. Supreme Court vacated the Third Circuit’s opinion and remanded the case for further proceedings. It did not, however, remove the preliminary injunction against enforcement of the statute.

The Court held that COPA’s “use of ‘community standards’ to identify ‘material that is harmful to minors’ . . . does not render the statute facially unconstitutional” — it “does not by itself render the statute substantially overbroad for purposes of the First Amendment.”[9] Although there were five separate opinions in the case, eight of the nine justices favored remanding the case to the Third Circuit to consider whether the act was nevertheless unconstitutional. Only Justice Stevens dissented, as only he believed that the use of community standards was a sufficient problem to warrant an affirmance of the Third Circuit’s opinion.

The Court’s statement that COPA’s use of community standards does not by itself render the statute unconstitutional implies that COPA’s use of community standards may nevertheless prove a factor among others that renders the statute unconstitutional. Justice Thomas, however, despite writing the opinion for the Court, including the by itself language quoted above, wrote, in a section of the opinion joined only by Chief Justice Rehnquist and Justice Scalia, “that any variance caused by the statute’s reliance on community standards is not substantial enough to violate the First Amendment.”[10] Justice Thomas also commented: “If a publisher wishes for its material to be judged only by the standards of particular communities [and not by the most puritanical community], then it need only take the simple step of utilizing a medium [a medium other than the Internet ] that enables it to target the release of its materials into those communities.”[11] Justice Stevens responded that the Court should “place the burden on parents to ‘take the simple step of utilizing a medium that enables’ . . . them to avoid this material before requiring the speaker to find another forum.”[12]

Justice Kennedy, in a concurring opinion joined by Justices Souter and Ginsburg, found that “[w]e cannot know whether variation in community standards renders the act substantially overbroad without first assessing the extent of speech covered and the variations in community standards with respect to that speech.”[13] Justice Kennedy believed that, before an assessment could be made, the Third Circuit should consider such questions as how much material COPA prohibits, how much the standard of the most puritanical community in the nation differ from standards of other communities, “what it means to evaluate Internet material ‘as a whole,’” and the number of venues in which the government could prosecute violations of the act.[14]

Justices O’Connor and Breyer wrote separate concurring opinions. Justice O’Connor agreed with Justice Kennedy that the plaintiffs had failed “to demonstrate substantial overbreadth due solely to the variation between local communities,”[15] and Justice Breyer, to avoid a First Amendment problem, would have construed the phrase “community standard” in the statute to mean a national standard.

Appellate Court Proceedings on Remand Edit

On March 6, 2003, on remand, the Third Circuit again affirmed the district court’s preliminary injunction. It held “that the following provisions of COPA are not narrowly tailored to achieve the Government’s compelling interest in protecting minors from harmful material and therefore fail the strict scrutiny test: (a) the definition of ‘material that is harmful to minors,’ . . . (b) the definition of ‘commercial purposes,’ . . . and (c) the ‘affirmative defenses’ available to publishers, which require the technological screening of users for the purpose of age verification.”[16]

As for the definition of “material that is harmful to minors,” the court found that the requirement that material be judged “as a whole” in determining whether it was designed to appeal to the prurient interests of minors and to lack serious value for minors meant “that each individual communication, picture, image, exhibit, etc. be deemed ‘a whole’ by itself,” rather than in context.[17] Yet “one sexual image, which COPA may proscribe as harmful material, might not be deemed to appeal to the prurient interest of minors if it were to be viewed in the context of an entire collection of Renaissance artwork.”[18] The court also found the word “minor” in the definition of “material that is harmful to minors” to be “not narrowly drawn to achieve the statute’s purpose,” because it precludes Web publishers from knowing whether “an infant, a five-year old, or a person just shy of age seventeen . . . should be considered in determining whether the content of their website has ‘serious . . . value for [those] minors’” or “will trigger the prurient interest, or be patently offensive with respect to those minors . . . .”[19]

As for the definition of “commercial purposes,” the court was “satisfied that COPA is not narrowly tailored to proscribe commercial pornographers and their ilk, as the Government contends, but instead prohibits a wide range of protected expression.”[20] As for the affirmative defense available to publishers, the court found that it “will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content . . . .”[21]

The Third Circuit also found that voluntary “blocking and filtering techniques . . . may be substantially less restrictive than COPA in achieving COPA’s objective of preventing a minor’s access to harmful material.”[22] Finally, it held “that the plaintiffs will more probably prove at trial that COPA is substantially overbroad, and therefore, we will affirm the District Court on this independent ground as well.”[23]

Second U.S. Supreme Court Proceedings Edit

On June 29, 2004, the Supreme Court, by a 5-4 vote, affirmed the preliminary injunction and remanded the case for trial. The Court, in an opinion by Justice Kennedy, found that the district court had not abused its discretion in granting a preliminary injunction, because the government had failed to show that proposed alternatives to COPA would not be as effective in accomplishing its goal. The Court did not address the Third Circuit’s conclusions that various terms used in COPA rendered it unconstitutional.

The primary alternative to COPA, the Court noted, is blocking and filtering software. Filters are less restrictive than COPA because “[t]hey impose selective restrictions on speech at the receiving end, not universal restriction at the source.”[24] In addition filters may be more effective than COPA because “a filter can prevent minors from seeing all pornography, not just [the 60% of] pornography posted on the Web from America,” and filters “can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web.”[25] Furthermore, “[m]ore and better filtering alternatives may exist than when the District Court entered its findings,” and “a congressionally appointed commission issued a report that found that filters are more effective than [age] verification screens.”[26] Nevertheless, the Court's “opinion does not foreclose the District Court from concluding, upon a proper showing by the Government that meets the Government’s constitutional burden as defined in this opinion, that COPA is the least restrictive alternative available to accomplish Congress’ goal.”[27]

Justice Breyer, in his dissent, found that COPA’s “burden on protected speech . . . is no more than modest,” as it would limit “legally obscene material, and very little more.”[28] Further, COPA “does not censor the material it covers,” but merely “requires providers of the ‘harmful to minors’ material to restrict minors’ access to it by verifying age.”[29] Justice Breyer then wrote that blocking and filtering software is not a less restrictive alternative because “it is part of the status quo,” and “[i]t is always less restrictive to do nothing than to do something.”[30] In addition, Breyer asserted, “filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision.”[31] (The majority opinion countered that Congress “may act to encourage the use of filters,” and “[t]he need for parental cooperation does not automatically disqualify a proposed less restrictive alternative.”[32]) Justice Breyer also noted “four serious inadequacies” of filters, and found that COPA’s application to “60% of the Internet’s commercial pornography” is not “insignificant.”[33] Justice Breyer’s dissent was joined by two other justices, and Justice Scalia wrote a separate dissent, claiming that “harmful-to-minors” material is not protected by the First Amendment.

Trial Court Proceedings on Remand Edit

Upon remand, the district court found COPA to be unconstitutional. The grounds for its decision were that “COPA is not narrowly tailored to Congress’ compelling interest,” the Attorney General “failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest,” and “COPA is impermissibly vague and overbroad.”[34] The court found COPA to be overinclusive, which means that it prohibited “more speech than is necessary to further Congress’ compelling interest,” as it “covers more than just commercial pornographers” and “applies to speech that is obscene as to all minors from newborns to age sixteen, and not just to speech that is obscene as to older minors.”[35]

The court also found COPA to be underinclusive, as it does not apply to “a significant amount of sexually explicit material on the Internet which originates from outside of the United States,” which is one reason, the court found, that COPA would not be not as effective as alternatives, such as filters, would be in achieving its ends.[36]

Subsequent Proceedings Edit

In 2008, the Third Circuit affirmed, finding that COPA “does not employ the least restrictive alternative to advance the Government’s compelling interest” and is also vague and overbroad.[37] In 2009, the Supreme Court declined to review the case.[38]

References Edit

  1. 31 F.Supp.2d at 495.
  2. Id. at 497.
  3. Id.
  4. Id.
  5. 217 F.3d at 166.
  6. Id.
  7. Id. at 173.
  8. Id. at 179.
  9. 535 U.S. at 585 (emphasis in original).
  10. Id.
  11. Id. at 583.
  12. Id. at 606 n.2.
  13. Id. at 597.
  14. Id. at 600.
  15. Id. at 589.
  16. 322 F.3d 240, 251 (3d Cir. 2003) (emphasis in original).
  17. Id. at 252.
  18. Id. at 253.
  19. Id. at 254.
  20. Id. at 257.
  21. Id. at 259.
  22. Id. at 265.
  23. Id. at 271.
  24. Ashcroft, 542 U.S. at 657.
  25. Id.
  26. Id. at 671.
  27. Id. at 2795.
  28. Id. at 678.
  29. Id. at 682.
  30. Id. at 684.
  31. Id.
  32. Id. at 669.
  33. Id. at 687.
  34. American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775, 777-78 (E.D. Pa. 2007).
  35. Id. at 810.
  36. Id.
  37. American Civil Liberties Union v. Mukasey, 534 F.3d 181, 198 (3d Cir. 2008).
  38. __ U.S. __, 129 S.Ct. 1032 (2009).

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