Child Online Protection Act Gets Third Strike

Child Online Protection Act Gets Third Strike

After a decade of federal litigation and two decisions that were returned to lower courts from the Supreme Court for further review, the Third Circuit Court of Appeals July 22 unanimously declared unconstitutional for the third time the Child Online Protection Act of 1998 on First and Fifth Amendment grounds. “The government has no more right to censor the internet than it does books and magazines,” Chris Hansen, ACLU senior staff attorney, remarked after the ruling was handed down.

During the string of legal proceedings, the American Library Association’s Freedom to Read Foundation filed several amicus curiae briefs on behalf of the plaintiffs, the latest in November 2007 in American Civil Liberties Union v. Mukasey. (The first was filed in 1999 in support of ACLU v. Reno; as the challenge proceeded, it became known successively as ACLU v. Ashcroft and ACLU v. Gonzales.)

Signed into law by Pres. Bill Clinton in 1998, COPA mandated a $50,000-per-day fine and up to six months’ incarceration for a website owner who posts a commercial online communication “that includes any material that is harmful to minors,” defined as anyone 17 or younger, unless the site keeps minors out through a digital age-verification gateway. The law was intended as a more narrowly tailored version of the Communications Decency Act of 2006, whose criminalization of “indecent speech” was overturned in 1997.

Due to an injunction granted in February 1999, COPA has never been enforced. The Supreme Court upheld the injunction in 2004 and sent the case back to the lower courts for trial. The COPA challenge returned to the Supreme Court in 2004, when the justices once again remanded the case to the district court level—this time to weigh whether filtering technology had evolved into a less restrictive alternative than COPA in the years since the law was originally enacted.

In its latest decision, the appeals court ruled that COPA “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.” Agreeing with the lower court’s March 2007 findings, the decision stated that blocking software, “although not flawless,” is a less-restrictive means of shielding youngsters from sexually explicit material. The court asserted that parents can tailor software settings “to the age and maturity of their children and thus use an appropriate flexible approach differing from COPA’s ‘one size fits all’ approach,” which the decision deemed “impermissibly vague” in violation of the Fifth Amendment by not specifying what would constitute a criminal violation. Filters “do not subject speakers to criminal or civil penalties,” and can block access to non-U.S. websites as COPA cannot, the ruling asserted.

Expressing disappointment that the court “struck down a congressional statute designed to protect our children from exposure to sexually explicit material on the internet,” Justice Department spokesperson Charles Miller told American Libraries that the government was reviewing its options and “deciding what our next step will be.”

Posted on July 23, 2008. Discuss.