Third Circuit Strikes Down COPA ' Again

The Child Online Protection Act ('COPA') suffers from a slew of fatal flaws that render the law unconstitutional under the First Amendment, the Third U.S. Circuit Court of Appeals has ruled.

'We are quite certain that notwithstanding Congress's laudable purpose in enacting COPA, the government has not met its burden of showing that it is narrowly tailored so as to survive a strict scrutiny analysis and thereby permit us to hold it to be constitutional,' Senior Third Circuit Judge Morton I. Greenberg wrote in ACLU v. Mukasey.

Sixth Time's the Charm?

The decision, handed down on July 22, comes after nearly a decade of litigation ” including two trips to the U.S. Supreme Court ” and marks the sixth time that a court has blocked the law from going into effect. (The decision can be found at www.ca3.uscourts.gov/opinarch/072539p.pdf.)

The unanimous three-judge panel found that COPA's criminal penalties for allowing minors to access 'harmful' material on the Internet is not the 'least restrictive' means of protecting children because filtering software accomplishes the same goals.

During oral argument, Justice Department attorney Charles W. Scarborough argued that the First Amendment does not prohibit Congress from adopting a 'belt-and-suspenders' approach to addressing the compelling government interest of protecting minors from accessing harmful material on the Web, with filters acting as the 'belt' and COPA as the 'suspenders.'

But American Civil Liberties Union attorney Christopher A. Hansen argued that, under the First Amendment, if the belt works at least as effectively as the suspenders, then the government cannot prosecute people for not wearing suspenders.

Greenberg agreed, saying 'the government has not shown that COPA is a more effective and less restrictive alternative to the use of filters and the government's promotion of them in effectuating COPA's purposes.'

COPA was passed in 1998 in the wake of the U.S. Supreme Court's decision to strike down its predecessor, the Communications Decency Act.

Adopting a new tactic, Congress focused only on 'commercial' Internet sites, passing a law that would impose civil and criminal penalties ” including up to six months imprisonment ” for anyone who knowingly posts 'material that is harmful to minors' on the Internet 'for commercial purposes.'

But the law never went into effect because the ACLU and a group of Internet publishers immediately filed suit and won a preliminary injunction.

First Amendment Violated

Senior U.S. District Judge Lowell A. Reed Jr. of the Eastern District of Pennsylvania concluded that the plaintiffs were likely to succeed with their facial attack on the law because COPA was overbroad and would 'chill' protected speech, and that its criminal penalties were not the 'least restrictive' means of achieving the government's goals since filtering software would be more effective in shielding minors from harmful material.

The Third Circuit upheld Reed's injunction on narrower grounds, finding that COPA's 'community standards' test was so overbroad that, by itself, it rendered the law unconstitutional.

But the U.S. Supreme Court reversed, holding that the 'community standards' language did not, standing alone, doom the law, and ordered the Third Circuit to revisit the issue of whether COPA should be blocked from taking effect. On remand, the Third Circuit again upheld Reed's injunction in 2003, but took a more searching approach, citing a host of flaws in the law that likely violated the First Amendment.

The court concluded that COPA was not narrowly tailored to serve the government's compelling interest in preventing minors from being exposed to harmful material on the Internet, was not the least restrictive means available to effect that interest, and was substantially overbroad.

The Supreme Court took the case up again and affirmed the Third Circuit, but ordered Reed to hold a full trial before issuing a permanent injunction and instructed that he focus on whether Internet content filters are more effective than enforcement of the COPA restrictions.

In March 2007, Reed issued a permanent injunction ” but also said he wasn't happy to do so.

'Despite my personal regret at having to set aside yet another attempt to protect our children from harmful material,' Reed said. He also recognized, as Justice Anthony Kennedy did in striking down a flag burning statute, that judges have a duty at times to make decisions they do not like.

But Reed said he also concluded that allowing COPA to take effect would actually do more harm to children in the long run. 'Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection,' Reed wrote.

Now the Third Circuit has once again upheld Reed's rulings, finding that none of the government's arguments could save the law. Greenberg, who was joined by Judges Thomas L. Ambro and Michael A. Chagares, found that numerous terms in COPA were not 'narrowly tailored' and that the law therefore failed a strict scrutiny test.

Among the law's terms that Greenberg found faulty were the statute's definition of 'material that is harmful to minors' which includes the concept of taking 'as a whole' material designed to appeal to the 'prurient interest' of minors; and material which lacks 'serious literary' or other 'value' for minors.

'While COPA penalizes publishers for making available improper material for minors, at the same time it impermissibly burdens a wide range of speech … otherwise protected for adults,' Greenberg wrote.

And by defining a 'minor' as 'any person under 17 years of age,' Greenberg said, the law would apply equally to infants, five-year-old children and those 'just shy' of age 17.

As a result, Greenberg said, '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.'

Scarborough argued that COPA is narrowly tailored because it applies only to commercial pornographers and only to material that is harmful to 'older' minors.

Greenberg disagreed, saying the Third Circuit had already rejected that argument when it upheld Reed's preliminary injunction and found that 'there is nothing in the text of COPA to limit its application solely to 'commercial pornographers' or to limit the phrase 'material that is harmful to minors' to include material that is harmful only to 'older' minors.'

Affirmative Defenses Rejected

Scarborough also argued that Reed erred by refusing to recognize the limiting effect of COPA's affirmative defenses, which exonerate any Internet publisher that employs an 'age verification' mechanism, such as requiring a credit card to gain access.

But Greenberg found that Reed had properly rejected the affirmative defenses on the grounds that minors sometimes have access to credit cards, and that requiring credit cards would impose undue cost burdens on Internet publishers and chill speech by discouraging traffic to any site with sexually explicit content.

Scarborough insisted that Reed's analysis was flawed because he focused almost exclusively on Internet publishers who provide their content for free, thereby ignoring the commercial pornographers who are the law's main target.

Greenberg disagreed, saying 'the fact that COPA places burdens on Web publishers whom the government does not consider to be within the 'heartland' of the statute does not make those burdens any less onerous or offensive to the principles of the First Amendment.'

The pornographers would also be unduly burdened, Greenberg found, because they would face 'significant costs' to implement the affirmative defenses and 'will suffer the loss of legitimate visitors once they do so.'

As a result, Greenberg concluded that Reed had 'correctly found that implementation of COPA's affirmative defenses by a Web publisher so as to avoid prosecution would involve high costs and also would deter users from visiting implicated Web sites. It is clear that these burdens would chill protected speech and thus that the affirmative defenses fail a strict scrutiny analysis.'

The Child Online Protection Act ('COPA') suffers from a slew of fatal flaws that render the law unconstitutional under the First Amendment, the Third U.S. Circuit Court of Appeals has ruled.

'We are quite certain that notwithstanding Congress's laudable purpose in enacting COPA, the government has not met its burden of showing that it is narrowly tailored so as to survive a strict scrutiny analysis and thereby permit us to hold it to be constitutional,' Senior Third Circuit Judge Morton I. Greenberg wrote in ACLU v. Mukasey.

Sixth Time's the Charm?

The decision, handed down on July 22, comes after nearly a decade of litigation ” including two trips to the U.S. Supreme Court ” and marks the sixth time that a court has blocked the law from going into effect. (The decision can be found at www.ca3.uscourts.gov/opinarch/072539p.pdf.)

The unanimous three-judge panel found that COPA's criminal penalties for allowing minors to access 'harmful' material on the Internet is not the 'least restrictive' means of protecting children because filtering software accomplishes the same goals.

During oral argument, Justice Department attorney Charles W. Scarborough argued that the First Amendment does not prohibit Congress from adopting a 'belt-and-suspenders' approach to addressing the compelling government interest of protecting minors from accessing harmful material on the Web, with filters acting as the 'belt' and COPA as the 'suspenders.'

But American Civil Liberties Union attorney Christopher A. Hansen argued that, under the First Amendment, if the belt works at least as effectively as the suspenders, then the government cannot prosecute people for not wearing suspenders.

Greenberg agreed, saying 'the government has not shown that COPA is a more effective and less restrictive alternative to the use of filters and the government's promotion of them in effectuating COPA's purposes.'

COPA was passed in 1998 in the wake of the U.S. Supreme Court's decision to strike down its predecessor, the Communications Decency Act.

Adopting a new tactic, Congress focused only on 'commercial' Internet sites, passing a law that would impose civil and criminal penalties ” including up to six months imprisonment ” for anyone who knowingly posts 'material that is harmful to minors' on the Internet 'for commercial purposes.'

But the law never went into effect because the ACLU and a group of Internet publishers immediately filed suit and won a preliminary injunction.

First Amendment Violated

Senior U.S. District Judge Lowell A. Reed Jr. of the Eastern District of Pennsylvania concluded that the plaintiffs were likely to succeed with their facial attack on the law because COPA was overbroad and would 'chill' protected speech, and that its criminal penalties were not the 'least restrictive' means of achieving the government's goals since filtering software would be more effective in shielding minors from harmful material.

The Third Circuit upheld Reed's injunction on narrower grounds, finding that COPA's 'community standards' test was so overbroad that, by itself, it rendered the law unconstitutional.

But the U.S. Supreme Court reversed, holding that the 'community standards' language did not, standing alone, doom the law, and ordered the Third Circuit to revisit the issue of whether COPA should be blocked from taking effect. On remand, the Third Circuit again upheld Reed's injunction in 2003, but took a more searching approach, citing a host of flaws in the law that likely violated the First Amendment.

The court concluded that COPA was not narrowly tailored to serve the government's compelling interest in preventing minors from being exposed to harmful material on the Internet, was not the least restrictive means available to effect that interest, and was substantially overbroad.

The Supreme Court took the case up again and affirmed the Third Circuit, but ordered Reed to hold a full trial before issuing a permanent injunction and instructed that he focus on whether Internet content filters are more effective than enforcement of the COPA restrictions.

In March 2007, Reed issued a permanent injunction ” but also said he wasn't happy to do so.

'Despite my personal regret at having to set aside yet another attempt to protect our children from harmful material,' Reed said. He also recognized, as Justice Anthony Kennedy did in striking down a flag burning statute, that judges have a duty at times to make decisions they do not like.

But Reed said he also concluded that allowing COPA to take effect would actually do more harm to children in the long run. 'Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection,' Reed wrote.

Now the Third Circuit has once again upheld Reed's rulings, finding that none of the government's arguments could save the law. Greenberg, who was joined by Judges Thomas L. Ambro and Michael A. Chagares, found that numerous terms in COPA were not 'narrowly tailored' and that the law therefore failed a strict scrutiny test.

Among the law's terms that Greenberg found faulty were the statute's definition of 'material that is harmful to minors' which includes the concept of taking 'as a whole' material designed to appeal to the 'prurient interest' of minors; and material which lacks 'serious literary' or other 'value' for minors.

'While COPA penalizes publishers for making available improper material for minors, at the same time it impermissibly burdens a wide range of speech … otherwise protected for adults,' Greenberg wrote.

And by defining a 'minor' as 'any person under 17 years of age,' Greenberg said, the law would apply equally to infants, five-year-old children and those 'just shy' of age 17.

As a result, Greenberg said, '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.'

Scarborough argued that COPA is narrowly tailored because it applies only to commercial pornographers and only to material that is harmful to 'older' minors.

Greenberg disagreed, saying the Third Circuit had already rejected that argument when it upheld Reed's preliminary injunction and found that 'there is nothing in the text of COPA to limit its application solely to 'commercial pornographers' or to limit the phrase 'material that is harmful to minors' to include material that is harmful only to 'older' minors.'

Affirmative Defenses Rejected

Scarborough also argued that Reed erred by refusing to recognize the limiting effect of COPA's affirmative defenses, which exonerate any Internet publisher that employs an 'age verification' mechanism, such as requiring a credit card to gain access.

But Greenberg found that Reed had properly rejected the affirmative defenses on the grounds that minors sometimes have access to credit cards, and that requiring credit cards would impose undue cost burdens on Internet publishers and chill speech by discouraging traffic to any site with sexually explicit content.

Scarborough insisted that Reed's analysis was flawed because he focused almost exclusively on Internet publishers who provide their content for free, thereby ignoring the commercial pornographers who are the law's main target.

Greenberg disagreed, saying 'the fact that COPA places burdens on Web publishers whom the government does not consider to be within the 'heartland' of the statute does not make those burdens any less onerous or offensive to the principles of the First Amendment.'

The pornographers would also be unduly burdened, Greenberg found, because they would face 'significant costs' to implement the affirmative defenses and 'will suffer the loss of legitimate visitors once they do so.'

As a result, Greenberg concluded that Reed had 'correctly found that implementation of COPA's affirmative defenses by a Web publisher so as to avoid prosecution would involve high costs and also would deter users from visiting implicated Web sites. It is clear that these burdens would chill protected speech and thus that the affirmative defenses fail a strict scrutiny analysis.'