Child Online Protection Act revisited by Supreme Court

Passed in 1998, the law known as COPA creates a crime of knowingly placing on-line for commercial purposes any material that is "available to" and deemed harmful to minors. Violation carries a fine of up to $50,000 and six months in prison, although there is a defence if the web site operator restricts access to minors by requiring use of a credit card or other means of age verification.

The case against COPA's validity was brought by the American Civil Liberties Union (ACLU), on-line publishers, and others, in 1999. The ACLU argued that law's ban on material that is legal for viewing by adults is inconsistent with the Constitutional right of free speech.

The case reached the 3rd US Circuit Court of Appeals, which struck down the Act, upholding an injunction to stop the law coming into force.

That ruling was appealed by the US Justice Department to the US Supreme Court, which, in May 2002, upheld part of the law and referred it back to the lower court for reconsideration.

Specifically, the Supreme Court said that COPA applies "contemporary community standards" to determine whether or not material is harmful to children.

Justice Clarence Thomas said that this approach "does not by itself" violate the Constitution; but he added that the court was not expressing views on whether the law may be unconstitutional for other reasons.

In March this year the Court of Appeals again struck down the Act. It reasoned that COPA is unconstitutional because it is not narrowly tailored to target only pornography and that legitimate webmasters would be unfairly targeted.

The Supreme Court yesterday agreed to hear the appeal by the Justice Department.

According to Reuters, in making the appeal Solicitor General Theodore Olsen said that the Appeals Court ruling "leaves minors unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web."

He added that the requirement of a credit card or other such method of ID was a "reasonable burden [...] to serve the compelling interest in protecting minors from pornography."

The case will be heard early next year.