Supreme Court orders review of child on-line protection law

The case over the 1998 Child Online Protection Act, known as COPA, was brought by the American Civil Liberties Union (ACLU). The ACLU argues that law’s ban on material which is legal for viewing by adults is inconsistent with the US Constitution’s principle of free speech.

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 6 months in prison.

There is a defence if the web site operator restricted access to minors by:

“requiring use of a credit card, debit account, adult access code, or adult personal identification number; by accepting a digital certificate that verifies age; or by any other reasonable measures that are feasible under available technology.”

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.

Accordingly, in an 8-1 vote, the Supreme Court sent the case back to the US Court of Appeals for the Third Circuit in Philadelphia which had previously upheld an injunction to stop the law coming into force pending resolution of the dispute.

In a dissenting opinion, Justice John Paul Stevens argued that the law is too broad and that it could capture on-line advertisements, magazines, bulletin boards, chat rooms and stock photo galleries.