Supreme Court rejects Child Online Protection Act – again

The Court has not thrown out the Act altogether. Instead, it sent the case back to a district court, which must decide whether advances in technology have now provided less restrictive means for the on-line protection of children than the draconian measures detailed in the Act.

Background

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 began in 1999 when the American Civil Liberties Union (ACLU), on-line publishers and others argued that because the law bans material that is legal for viewing by adults it 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 prevent it coming into force.

The US Justice Department then appealed the ruling to the US Supreme Court, which, in May 2002, upheld part of the law and referred it back to the lower court for reconsideration. While the ruling did not specifically cover the free speech issues, the Supreme Court said that COPA applies "contemporary community standards" to determine whether or not material is harmful to children.

In March 2003 the Court of Appeals again struck down the Act, reasoning that COPA is unconstitutional because it is not narrowly tailored to target only pornography. Legitimate webmasters would be unfairly targeted, said the court.

And so the case returned to the Supreme Court, which has now upheld the Appeal Court injunction.

The Supreme Court Ruling

According to five of the nine Supreme Court Justices, the Court of Appeals was correct to block the enforcement of COPA. Writing the majority opinion Justice Anthony Kennedy warned:

"Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid".

On this occasion, said Justice Kennedy, the Justice Department had not sufficiently overcome that presumption for the injunction to be annulled. In particular, "The Government has failed, at this point, to rebut the plaintiffs' contention that there are plausible less restrictive alternatives to the statute."

But the ruling, which was endorsed by Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg, did not explicitly state that the Act was unconstitutional.

Such a decision could only be made, said the Court, after a new trial to consider whether developments in the law and in technology – particularly internet filters – have now provided a less restrictive means of protecting children on-line than that provided by the Act.

The case has therefore been referred back to the federal court in Philadelphia, and in practice means that a final decision as to the constitutionality of COPA is unlikely to be made for several years.

However, four of the Justices did not agree with the majority interpretation. According to Justice Stephen Breyer, joined in his dissent by Justices Sandra Day O'Connor, and Chief Justice William H Rehnquist, COPA does not "censor the material it covers", but "requires providers of the 'harmful to minors' material to restrict minors' access to it by verifying age."

"In sum," he added, "the Act at most imposes a modest additional burden on adult access to legally obscene material, perhaps imposing a similar burden on access to some protected borderline obscene material as well."

Justice Antonin Scalia wrote his own dissent.

Reactions

The ACLU's Ann Beeson welcomed the ruling. She said: "Today's ruling from the Court demonstrates that there are many less restrictive ways to protect children without sacrificing communication intended for adults".

"By preventing Attorney General Ashcroft from enforcing this questionable federal law, the Court has made it safe for artists, sex educators, and web publishers to communicate with adults about sexuality without risking jail time," she added.

Predictably, Department of Justice spokesman Mark Corallo condemned the decision, saying: "Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped."

"Congress has repeatedly attempted to address this serious need, and the court yet again opposed these common-sense measures to protect America's children," he added.

See:

• Text of the ruling (41-page PDF)