DOJ Appealing COPA Rejection

The Bush administration is appealing to the Supreme Court a Pennsylvania appeals court March ruling barring the enforcement of the Child Online Protection Act (COPA), the controversial 1998 law intended to make it a crime to place sexually explicit material on the Internet where minors could view it.

The law requires commercial Web site operators to use credit cards or other adult access systems to prevent minors from viewing the material. COPA imposes criminal and civil penalties of up to $50,000 per day for violations. COPA has not been enforced since the American Civil Liberties Union filed a lawsuit opposing it.

The Philadelphia court. has twice ruled that COPA unconstitutionally restricts free speech. When the first COPA rejection was issued, the Supreme Court reviewed the decision and ruled the appeals court could not bar enforcement of the law on the basis that it relies on community standards to identify harmful material and the Internet inherently is a non-geographical medium.

In its second rejection of COPA, the appeals court said the law was not narrowly tailored to punish commercial pornographers but “instead prohibits a wide range of protected expression.”

“When contemporary community standards are applied to the Internet, which does not permit speakers or exhibitors to limit their speech or exhibits geographically, the statute effectively limits the range of permissible material under the statute to that which is deemed acceptable only by the most puritanical communities,” the appeals court ruled, noting that this limitation by definition “burdens speech otherwise protected under the First Amendment for adults as well as for minors living in more tolerant settings.”

Congress drafted COPA in an effort to create a more narrowly defined law than the Communications Decency Act (CDA) of 1996, which the Supreme Court struck down in 1997 as unconstitutional.

In June, the Supreme Court agreed with another Bush administration appeal when it voted, 6-3, that public library Internet anti-pornography filters are not a violation of the First Amendment, even if the filters block some legitimate sites.

The decision overturned the same Philadelphia federal appeals court that has barred enforcement of COPA.