Child Online Protection Act Struck Down

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Child Online Protection Act Struck Down

Special Report - July 24, 2008
Ten years after it was enacted, the 1998 Child Online Protection Act (COPA) has once again been found unconstitutional and barred from enforcement by a federal appeals court. In a decision on July 22, a three-judge panel of the 3^rd U.S. Circuit Court of Appeals, which has appellate jurisdiction over Delaware, New Jersey, and Pennsylvania, upheld a district court ruling that found that COPA “facially violates the First and Fifth Amendments.” The federal appeals court affirmed the lower court’s decision that COPA “is not narrowly tailored to advance the Government’s compelling interest in protecting children from harmful material on the World Wide Web,” and “there are less restrictive, equally effective alternatives to COPA,” and the law “is impermissibly overbroad and vague.”

Enacted by Congress in 1998 to help protect children from obscene or sexually explicit material on the Internet, COPA “provides for civil and criminal penalties—including up to six months in prison—for anyone who knowingly posts ‘material that is harmful to minors’ on the Web ‘for commercial purposes.’” The legal battle over COPA began one day after the law was enacted, when the ACLU, on behalf of several web site providers, writers and web users, challenged the law, claiming that it censored free speech on the Internet and there were less restrictive ways to protect children from online pornography. A federal district court and a federal appeals court agreed, ruling the law unconstitutional and prohibiting it from taking effect. In 2004, the case reached the U.S. Supreme Court, which ruled that COPA violated the First Amendment but sent the case back to the district court to consider the impact of technological advances in filtering software on the law. In March 2007, a federal district court struck down the law again, and the government appealed the decision to the 3^rd U.S. Circuit Court of Appeals.

In the 57-page decision upholding the district court’s ruling, Circuit Judge Morton I. Greenberg wrote: “The Government simply has not carried its burden of showing that COPA is a more effective method than filters in advancing the Government’s compelling interest as evidenced in COPA,” concluding that “COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional.” The Justice Department is reportedly considering whether to appeal the appeals court’s decision in the case, ALCU v. Mukasey.