Supreme Court Partially Lifts Bar on COPA

The U.S. Supreme Court Monday reversed a U.S. appeals court ruling which found the 1998 Child Online Protection Act (COPA) too broad
in scope. In an 8-1 vote, the justices ruled that the appeals court could not bar enforcement of the law on the basis that it relies
on community standards to identify harmful material.

The federal law was intended to make it a crime to place sexually explicit material on the Internet where minors can view it. The
law required 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.

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 Justice John Paul Stevens words, “the CDA places an unacceptably heavy
burden on protected speech.”

The day after COPA was signed into law by President Bill Clinton, the American Civil Liberties Union (ACLU), Electronic Privacy
Information Center (EPIC) and Electronic Frontier Foundation (EFF) filed suit alleging that COPA violated the First and Fifth
amendments to the Constitution. Among other complaints, the watchdog groups said COPA:

  • Imposes serious burdens on constitutionally-protected speech, including materials like movies and television programs when
    disseminated through commercial Web sites

  • Fails to serve the government’s interest in protecting children because it won’t effectively prevent children from seeing
    inappropriate material originating from outside the U.S. available through Internet resources beyond the World Wide Web, like chat
    rooms and e-mail

  • Does not represent the least restrictive means of regulating speech because the Supreme Court has found that blocking and
    filtering software may give parents more effective ability to screen undesirable content without burdening speech.

On June 22, 2000, the Third Circuit Court of Appeals unanimously upheld a lower court’s injunction against COPA, citing serious
constitutional flaws. In particular, the appeals court objected to the fact that the law defined harmful material as based on an
average person’s application of “contemporary community standards.” The court said such a definition would require all speakers on
the Web to adhere to the “most puritan” standards.

But on Monday, Supreme Court Justice Clarence Thomas, writing for the majority, said reliance on community standards to identify
material that may be harmful to minors does not, in itself, make the law too broad under the First Amendment.

However, the court also found that the law contained other potential constitutional problems that had not been addressed by the
lower court, and sent the law back for review. Thomas said the government could not enforce the law until the lower court
reconsidered it.

The only dissenting justice Monday, Justice John Paul Stevens, argued that the law may be so broad that it envelopes advertisements,
online magazines, bulletin boards, chat rooms, stock photo galleries, Web diaries, etc.

“The community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech,”
he wrote in his dissenting opinion.

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