Supreme Court Upholds COPA Ban

UPDATED: The U.S. Supreme Court Tuesday upheld a lower court ruling barring
enforcement of the Child Online Protection Act (COPA), a 1998 law enacted by
Congress to protect minors from exposure to sexually explicit materials on
the Internet.

On a 5-4 vote, the court sent the case back to the lower court for a
possible trial to evaluate whether technological solutions, such as
filtering software, may be a superior alternative to content-based
restrictions of free speech.

“The government has failed, at this point, to rebut the plaintiffs’
contention that there are plausible, less restrictive alternatives to the
statute,” wrote Justice Anthony Kennedy in the majority court opinion.
“Substantial practical considerations, furthermore, argue in favor
of upholding the injunction and allowing the case to proceed to trial.”

Agreeing with Kennedy were Justices John Paul Stevens, David H. Souter,
Clarence Thomas and Ruth Bader Ginsburg.

A Philadelphia court has twice ruled that COPA unconstitutionally restricts
free speech. The first COPA rejection was based on the fact that the law
relies on community standards and the Internet is inherently a
non-geographic 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.”

The U.S. Supreme Court in 2001 upheld the first lower court ruling, but sent
the case back for further review. Tuesday’s ruling affirms the second
appeals court decision.

The American Civil Liberties Union (ACLU) has led the opposition to COPA, which is
supported by a wide range of groups, including the Association of American
Publishers, the American Society of Newspaper Editors, the Recording Industry
Association of America, the Center for Democracy and Technology and
Volunteer Lawyers for the Arts.

Although it has never been enforced, COPA 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.

“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,” the court ruled Tuesday. “To guard against that threat, the
Constitution demands that content-based restrictions on speech be presumed
invalid, and that the government bear the burden of showing their

The justices said the government has so far failed to show that
technological solutions are not more practicable.

“Filters impose selective restrictions on speech at the receiving end, not
universal restrictions at the source,” the majority court decision states.
“Even adults with children may obtain access to the same speech on the same
terms simply by turning off the filter on their home computers. Promoting
filter use does not condemn as criminal any category of speech, and so the
potential chilling effect is eliminated, or at least much diminished.”

Kennedy wrote that the court acknowledges filtering software is not a
“perfect solution because it may block some materials not harmful to minors
and fail to catch some that are,” but the government has not “satisfied its
burden to introduce specific evidence proving that filters are less

Kennedy also wrote that the factual record in the case “does not reflect current
technological reality — a serious flaw in any case involving the Internet,
which evolves at a rapid pace. It is reasonable to assume that technological
developments important to the First Amendment analysis have occurred in the
five years.”

The Department of Justice was not immediately available for comment as to
whether or not it would pursue the case in the lower court.

“We urge [Attorney General] John Ashcroft to stop wasting taxpayer dollars
in defending this unconstitutional law,” ACLU Associate Litigation Director
Ann Beeson said in a statement. “If he insists on going back to trial, we
are confident that the lower court will again find that the law went too
far. As the Supreme Court today pointed out, there are even more ways today
to protect children online than existed when Congress passed this law.”

In a dissenting opinion, Justice Stephen G. Breyer argued COPA does
not block free speech.

“The act does not censor the material it covers. Rather, it requires
providers of the ‘harmful to minors’ material to restrict minors’ access to
it by verifying age. They can do so by inserting screens that verify age
using a credit card, adult personal identification number, or other similar
technology,” Breyer wrote. “In this way, the act requires creation of an
Internet screen that minors, but not adults, will find difficult to bypass.”

The conservative American Center for Law and Justice (ACLJ) issued a
statement that it was disappointed with the decision.

“The Supreme Court missed an important opportunity to act now to protect our
nation’s young people. By sending the case back to a lower court and
blocking COPA from taking effect, the high court further delays
consideration of an important law needed to protect children,” said Jay
Sekulow, the ACLJ’s chief counsel. “We are hopeful that the government will
be able to establish that Congress acted properly and in a constitutional
manner in enacting this law.”

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