Child Online Protection Act Still Unconstitutional

Author: Alex Harris

In 1998, Congress passed the Child Online Protection Act, criminalizing speech that, "taken as a whole," appeals to "the prurient interest," that depicts sexual contact, and that "lacks serious literary, artistic, political, or scientific value for minors." 47 U.S.C. § 231. The statute defines minors are persons aged 16 and younger. Id. at § 231(e)(7). The law applies to those content providers that spend some time or attention trying to earn a profit and that cause the harmful material to be posted online. Id. at § 231 (e)(2)(B). COPA provides websites with an affirmative defense if they restrict access by minors by requiring the use of a credit card or other means. Id. at § 231(c)(1).

Soon after COPA went into effect, the district court granted a temporary injunction against it, American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999), which the U.S. Court of Appeals for the Third Circuit upheld on the ground that language about "community standards" rendered COPA overbroad, American Civil Liberties Union v. Reno, 217 F.3d 162, 173 (3d Cir. 2000). The Supreme Court reversed and remanded, Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), but the Third Circuit struck down the law on a slew of other grounds, American Civil Liberties Union v. Ashcroft, 322 F.3d 240, 251-71 (3d Cir. 2003) ("ACLU II"). The Supreme Court upheld this decision, but directed the district court to try the case on the merits and find facts regarding the relative effectiveness of COPA and filtering software, Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 670-73 (2004). The district court found that filtering software was less restrictive and more effective than COPA and therefore that COPA failed strict scrutiny since it is not the least restrictive means to achieve the government’s objective and ordered a permanent injunction against enforcement, American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007) ("Gonzales"). The government appealed.

On July 22 of 2008, the Court of Appeals affirmed the district court. American Civil Liberties Union v. Mukasey, 534 F.3d 181, 184 (3d Cir. 1998) ("ACLU III"). The Third Circuit upheld the district court’s findings about filtering software. Id. at 198-204. The court also reiterated several points it made in ACLU II, which bound ACLU III because of "law of the case" theory, which holds that a court must follow the conclusions it has already made in the same case. Id. at 187-90. Specifically, the court held that COPA’s definition of "minors" (which includes three-year-olds and 16-year-olds, to whom different things will be harmful), its definition of "commercial purposes," and its affirmative defenses are not sufficiently narrowly-tailored to survive strict scrutiny, id. at 190-98; that COPA is unconstitutionally vague, since providers cannot know if they will be punished for posting content that would be harmful to young children but not to high-schoolers, id. at 204-05; and that COPA is unconstitutionally overbroad by reaching lots of protected speech, id. at 205-7.

American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008)