Controversial US child protection law is quashed for good

The Child Online Protection Act (COPA) was passed 10 years ago but has never taken effect and was the subject of a constitutional objection on the day it became law. It has been fought before in the Supreme Court and at state court level and has been found by courts to be not in keeping with the US constitution's protections for free speech.

COPA imposed penalties on those who published offensive material which was accessible by children.

When the law was passed by the US Congress, the American Civil Liberties Union (ACLU) filed a lawsuit objecting to it. It argued that the restriction of people's right to publish online was contrary to the US constitution's first amendment, which guarantees the right to free speech.

The Supreme Court has refused to hear an appeal by the US government against a lower court's decision that the law does not conform with the constitution, effectively ending the battle over the legislation.

"For over a decade the government has been trying to thwart freedom of speech on the internet, and for years the courts have been finding the attempts unconstitutional," said Chris Hansen, senior staff attorney for the ACLU and lead counsel on the case. "It is not the role of the government to decide what people can see and do on the internet. Those are personal decisions that should be made by individuals and their families."

The Court gave no reason for its refusal to look again at the law. It had ruled in 2004 on the legislation in another government appeal. It said then that the law was unconstitutional on the fact uncovered by a district court case, but sent the case back to that court to see if the facts had changed during the five years it had taken for the case to proceed.

"The Court's decision not to review COPA for a third time affirms what we have been saying all along – the government has no right to censor protected speech on the internet, and it cannot reduce adults to hearing and seeing only speech that the government considers suitable for children," said ACLU legal director Steven Shapiro.

A federal court had placed a permanent stay on the law in 2007 but the US government appealed that ruling and lost. It wanted to appeal to the Supreme Court but that permission has been refused.

Earlier in the legal process media, library and ISP industry organisations joined together to oppose the legislation, along with lobby group the Center for Democracy and Technology.

"None of the amici [bodies supporting the action] are engaged in the business of 'commercial pornography,' yet content-providing amici nevertheless are concerned that the speech with sexual content that they produce, distribute, use as teaching aids, and otherwise provide access to via the World Wide Web stands at risk of challenge under the Child Online Protection Act,” said a legal objection filed by the CDT.

“Service-providing amici fear that their ability to provide online forums for and access services to lawful speech will be restricted by COPA. This fear is hardly unfounded, as COPA applies on its face to any Web site that, in the regular course of business, communicates any material that is harmful to minors – whether or not it constitutes commercial pornography," it said.