Supreme Court won’t revive Child Online Protection Act

Today, the Supreme Court declared that it won’t revive COPA, the Child Online Protection Act.  Passed in 1998, the bill would “would have barred Web sites from making harmful content available to minors over the Internet.” The March 2007 federal appeals court decision ruled that COPA violated the First Amendment. In July 2008, the U.S. Court of Appeals for the Third Circuit upheld Judge Reed’s ruling. For a history of the COPA saga, go here.

The ACLU has released a press release on the decision stating:

Lower courts have rejected the law as unconstitutional and it has not gone into effect in the 10 years since it was passed. In 2004, the Supreme Court upheld an injunction against the law on the grounds that it violated the First Amendment. The American Civil Liberties Union first challenged COPA on behalf of a broad coalition of writers, artists and health educators who use the Internet to communicate constitutionally protected speech.

The following can be attributed to Steven R. Shapiro, Legal Director of the ACLU:

“The Court’s decision not to review COPA for a third time affirms what we have been saying all along – the government has no right to censor protected speech on the Internet, and it cannot reduce adults to hearing and seeing only speech that the government considers suitable for children.”

In response to the March ruling, Marjorie Heins at the Free Expression Policy Project wrote:

… COPA makes it a crime to distribute, “for commercial purposes,” material that is “harmful to minors” on the World Wide Web. It defines “harmful to minors” in the same vague terms as our current obscenity law – only adjusted downward for teenagers and children. That is, COPA bans speech about sex or nudity that is “patently offensive with respect to minors,” that, taken as a whole and as measured by “contemporary community standards,” appeals to the “prurient interest” of minors, and that, taken as a whole, “lacks serious literary, artistic, political, or scientific value for minors” …

Federal Judge Lowell Reed first entered a preliminary injunction against COPA in 1999. He found that the plaintiffs – the ACLU, other civil liberties groups, and a collection of Web publishers including Salon.com and Androgyny Books – were likely to succeed on the merits of their claim that COPA violates the First Amendment.

This was because the “harmful to minors” standard is a content-based restriction on speech that’s constitutionally protected for adults, and therefore must satisfy “strict” First Amendment scrutiny. Under strict scrutiny, the government must show that the law serves a “compelling state interest” and is the least restrictive means available to accomplish that interest. The compelling state interest seemed to be a given – protecting minors from pornography – but Judge Reed thought filters were likely to be a less restrictive means of accomplishing the goal than a criminal law banning this sort of expression.1 …

As in his first opinion in the COPA case eight years ago, Judge Reed expressed regret that he had to invalidate a law that had the “crucial” goal of “protecting children from sexually explicit materials.” But, he suggested, “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.”7

1. ACLU v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999).

7. ACLU v. Gonzales, No. 98-5591 (E.D. Pa. March 22, 2007). The decision can be found at http://www.techliberation.com/COPA_decision.pdf. slip opinion, pp. 82-83.

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Blogging Censorship is where National Coalition Against Censorship staff weigh in on the censorship issues on their minds.
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