On June 29, 2004, the United States Supreme Court held by a five to four margin that in the case of Ashcroft v. American Civil Liberties Union 535 U.S. 564 (2004), a district court judge did not abuse his discretion in issuing a preliminary injunction against enforcement of the Child Online Protection Act, COPA, 47 U.S.C. SEC 231, (OLR 2004). The Court's rationale was that the plaintiffs were likely to prevail at trial on their argument that there were plausible, less restrictive alternatives to the statute, particularly blocking or filtering software (OLR 2004). Two of the justices in the majority also joined in a concurring opinion, finding other constitutional defects in the law and of the four justices who dissented, three asserted that the law was the least restrictive alternative because it regulated a very small amount of lawful speech (OLR 2004). Dissenting separating was Justice Scalia, who argued that since the commercial pornography covered by COPA could be banned entirely, the law's lesser restrictions raised no constitutional concerns (OLR 2004).
COPA imposes a $50,000 fine and up to six months imprisonment for knowingly posting on the World Wide Web, for commercial purposes, material that is harmful to minors (OLR 2004). This material is defined as any communication, picture, image, graphic image, file, article, recording, writing, or other matter of any kind that is obscene or that:
'1. The average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
2. depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
3. taken as a whole, lacks serious literary, artistic, political, or scientific value for minors (Sec. 231(e)(6))" (OLR 2004).
COPA also covers persons who post any material on the World Wide Web that is harmful to minors and persons who devote time, attention, or labor to it, as a regular course of their trade or business, with the objective of making a profit (Sec. 231(e)(2)) (OLR 2004). COPA provides an affirmative defense to those who take steps to prevent minors from gaining access to the prohibited materials on their web site (OLR 2004). A person may escape conviction, but not prosecution, if he demonstrates that he has restricted minors' access by:
1. requiring use of a credit card, debit account, adult access code, or adult personal identification number;
2. accepting a digital certificate that verifies age; or
3. any other reasonable measures that are feasible under available technology (Sec. 231(c)(1)) (OLR 2004).
In 1999 Congress enacted the Child Online Protection Act after the Supreme Court ruled that its predecessor, the Communications Decency Act, violated rights to free speech protected by the U.S. Constitution's First Amendment (Reno v. ACLU, 521 U.S. 844 (1997)) (OLR 2004). Internet content providers and others concerned with protecting free speech then challenged
COPA's constitutionality by filing a suit against the United States Attorney General in the U.S. District Court for the Eastern District of Pennsylvania (OLR 2004). Among other things, they sought a preliminary injunction against enforcement of the statute and after holding a hearing in which witnesses testified for both sides, the court granted their request (OLR 2004).
The conclusion of the court was that the statute would place a burden on some lawful speech and that it was not "apparent that the attorney general could prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors to harmful materials" (OLR 2004). Moreover, the court noted that blocking or filtering technology could achieve the same success as COPA in access restrictions without imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web site operators (ACLU v. Reno, 31 F. Supp. 2d 473, 495 (1999)) (OLR 2004).
Although on different grounds, the Third Circuit Court of appeals affirmed, stating that the "community standards" language in COPA by itself rendered the statute unconstitutionally over-broad (217 F. 3d 162, 166 (2000)) (OLR 2004).
The Supreme Court reversed and remanded the case for reconsideration to the appeals court as to whether the district court had correctly granted the preliminary injunction (Ashcroft I, 535 U.S. At 535 (2002)) (OLR 2004). On remand, the appeals court again affirmed the district court's action, this time ruling that COPA was "over-broad, not narrowly tailored to serve a compelling governmental interest, and not the least restrictive means available to serve the interest of preventing minors from using the Internet to gain access to materials that are harmful to them (322 F. 3d 240, 266-271(2003))" (OLR 2004). The Supreme Court again granted certiorari (OLR 2004).
Justice Kennedy wrote the majority opinion and was joined by justices Ginsburg, Souter, Stevens, and Thomas (OLR 2004). Kennedy determined that the district court did not abuse its discretion in granting the preliminary injunction due to fact that the plaintiffs demonstrated they were likely to prevail on the merits of their claim that the Child Online Protection Act is unconstitutional (OLR 2004). Accepting the reasoning of the district court, Kennedy declined to consider the bases the Third Circuit asserted as supporting the lower court's decision (OLR 2004).
Kennedy relied on prior Court rulings which established statutes that "suppress a large amount of speech that adults have a constitutional right to receive and communicate to other adults are unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve (Reno v. ACLU, 521 U.S. 844, 874 (1997))" (OLR 2004). Kennedy wrote "The Government has failed, at this point, to rebut the plaintiff's contention that there are plausible, less restrictive alternatives to the statute" (Supreme 2004). When plaintiffs challenge content-based speech restrictions such as the Child Online Protection Act's, the government must prove that proposed alternatives will not be as effective as the challenged statute (OLR 2004).
The Court agreed with petitioners' claim that filters appear to be a less restrictive alternative and found the government had not shown it would likely disprove this contention at trial (OLR 2004). The Court reasoned that "selective restrictions on speech at the receiving end, not universal restrictions at the source, are preferable," and that promoting the use of filters does not condemn as criminal any category of speech, and thus, the potential "chilling effect is eliminated or much diminished' (OLR 2004). Moreover, the Court cited practical considerations for upholding the injunction, for example, the significant chilling of lawful speech if COPA were enforced before the case was tried (OLR 2004). The Court further noted that the evidence in record before the Court was at least five years old and that the involved parties should present evidence of subsequent changes in computer technology to the district court on remand (OLR 2004).
Justice Stevens, joined by Justice Ginsburg, wrote a concurring opinion stating
"In view of the gravity of the burdens COPA
imposes on Web speech, the possibility that
Congress might have accomplished the goal of protecting children from harmful materials by other, less drastic means is a matter to be considered with special care. With that observation,
I join the opinion of the Court" (Legal 2004).
Although, Stevens agreed with the majority's conclusion that encouraging deployment of user-based controls would serve Congress' interest in protecting minors from sexually explicit Internet materials, he argued that the Child Online Protection Act had other constitutional defects (OLR 2004). Stevens first asserted that the law's use of "contemporary community standards" to identify harmful materials to minors was problematic when applied to Internet transmissions, for in his view, this standard could make it a crime to post on the World Wide Web materials offensive only to a puritan village (OLR 2004). He further argued that "attaching criminal sanctions to a mistaken judgment about the contours of the nebulous category of 'harmful to minors' speech imposes too heavy a burden on the exercise of First Amendment freedoms" (OLR 2004).
Justice Breyer, joined by the chief justice and Justice O'Connor,
" ... my examination of (1) the burdens the Act
imposes on protected expression, (2) the Act's ability to further a compelling interest, and (3) the proposed "less restrictive alternatives" convinces me that the Court is wrong. I cannot accept its conclusion that Congress could have accomplished its statutory objective -- protecting children from commercial pornography on the Internet -- in other,
less restrictive ways" (Legal 2004).
Breyer also disagreed with the majority's contention that the Child Online Protection Act regulates a large amount of speech that adults can lawfully communicate to one another. In Breyer's view, "only a very small amount of sexually explicit speech would appeal exclusively to a minor's prurient interests; most would also appeal to adults…