Overbroad Rules on Internet Publication of Materials "Harmful to Minors" Killed by Supreme Court Ruling
In 1998, in another of a series of attempts to prevent access by minors of adult materials on the Internet, Congress passed the Child Online Protection Act (COPA, codified at 47 USC § 231). However laudable Congressional intent was, the text of COPA was unquestionably vague and overbroad. Internet content providers and distributors can now breathe more easily. By denying a writ of certiorari in American Civil Liberties Union v. Mukasey, on January 21, 2009, the U.S. Supreme Court has put the final punctuation mark on a lengthy court challenge to COPA and effectively agreed that it is unconstitutional.
The text of COPA states: "Whoever knowingly and with knowledge of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both." (fn1) The statute defines "material harmful to minors" as material that is "obscene" or that is designed to pander to the prurient interest, depicts sexual acts and taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. (fn2)
The ACLU first filed its challenge to the constitutionality of COPA in 1998, the day after the bill became law. A Pennsylvania District Court judge enjoined enforcement of COPA pending trial on the merits. The ruling was then affirmed by the Third Circuit only to be remanded for further proceedings by the Supreme Court - twice. After the second remand, the case was tried by the Pennsylvania District Court on a bench trial, which again found COPA to be unconstitutional. The Third Circuit affirmed this ruling in July 2008 -- finding COPA to be unconstitutional for the third time. The Supreme Court's refusal to accept certiorari means that it appears to be content with the record and reasoning in the Third Circuit's July 2008 opinion.
In its July 2008 opinion, the Third Circuit held that the COPA is a "content-based restriction on protected speech." (fn3) Content-based prohibitions that are enforced by severe criminal penalties are presumed invalid and may only be upheld if they pass what is called "strict scrutiny." (fn4) To pass this test, the government must show that: (i) there is a compelling interest for the statute, (ii) that the statute is narrowly-tailored to meet this interest, and (iii) that there are no other less-restrictive means for accomplishing the goal.
Looking at these standards, the Third Circuit acknowledged that the COPA did have a compelling interest -- protecting the physical and psychological wellbeing of minors. (fn5) However, the Third Circuit found that COPA failed the other two strict scrutiny tests. First, it found that COPA was not narrowly tailored, because it would restrict the speech of far more persons than just commercial pornographers and would prevent speech that would be considered obscene by any minor -- "from newborns to age sixteen", not just older minors.
The COPA provided a defense to prosecution if the defendant attempted to restrict access to minors by requiring use of a credit case, debit account, adult access code, adult personal identification number or digital certificate. However, the Third Circuit found that requiring these forms of identification were unreliable, since they could easily be defeated by minors. Moreover, requiring identification would "chill speech", since many users would be deterred from accessing the Web sites if they were required to provide identification.
The Third Circuit also found that COPA was not the least restrictive means of preventing access by minors to porn "because filter software and the Government's promotion and support of filter software is a less restrictive effective alternative." (fn6) The Third Circuit found that "filters are more flexible than COPA because parents can tailor them to their values and needs and to the age and maturity of their children and thus use an appropriate flexible approach differing from COPA's 'one size fits all' approach." The court also found that "although not flawless, with proper use filters are highly effective in preventing minors from accessing sexually explicit material on the Web." (fn7)
Because the COPA could not withstand strict scrutiny analysis, the Third Circuit held that it violated the First Amendment and hence was unconstitutional. The Third Circuit also faulted the COPA as impermissibly vague and overbroad, and hence in violation of the Due Process Clause of the Fifth Amendment.
The Third Circuit's reasoning was not without criticism. Some took issue with the court's reliance on filtering software, arguing that software filters often restrict access to non-objectionable sites, while leaving many pornographic sites open to minors. One critic suggested that the Third Circuit erred by applying the strict scrutiny test to the internet -- a test normally used for print media -- instead of the more limited protections normally applied to broadcast media. (fn 8)
Despite these critiques, the Supreme Court's apparent concurrence means that COPA is dead. It remains to be seen whether Congress will look for new means to restrict minors' access to adult material on the Web.
David D. Johnson is a business lawyer whose practice focuses on issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
Notes:
Fn1 47 USC § 231(a).
Fn2 46 USC § 231(e)(6).
Fn3 American Civil Liberties Union v. Mukasey, 534 F.3d 181, 187 (3rd Cir. 2008).
Fn4 Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004).
Fn5 534 F.3d at 190.
Fn6 Id. at 202.
Fn7 Id. at 203.
Fn8 See citations in Lauren L. Hackett, Taming Cyberspace: Broadcasting as a Model for Regulating the Internet, 14 Widener Law Review 265, 289 (2008).
