COPA fails to get past federal appeals panel

Friday, June 23, 2000

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Concerned about applying “contemporary community standards” in cyberspace, a federal appeals court yesterday struck another blow against Congress’ efforts to regulate pornography on the Web.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals unanimously agreed with a lower court judge that the Child Online Protection Act, or COPA, was constitutionally flawed and refused to allow the government to begin enforcing the law.

The law, passed in October 1998, criminalized the online transmission for commercial purposes on the World Wide Web of material harmful to minors.

COPA was Congress’ second attempt to regulate speech on the Internet. The first attempt — the Internet indecency provisions of the Communications Decency Act of 1996 — was struck down on First Amendment grounds by the Supreme Court in the 1997 decision ACLU v. Reno.

In several respects, COPA is more narrowly drafted than its predecessor. For example, COPA applies to communications on the World Wide Web, rather than the Internet as a whole. COPA purports to target only commercial pornographers. Finally, COPA criminalizes only material that is “harmful to minors,” unlike the CDA, which criminalized “indecent” material.

The day after COPA became law, the American Civil Liberties Union, the American Booksellers Foundation for Free Expression and 15 other groups challenged it in federal court.

In February 1999, U.S. District Judge Lowell Reed granted the ACLU a preliminary injunction preventing enforcement of COPA. Reed ruled that COPA was an unconstitutional content-based law that did not advance the government’s compelling interests in a narrow enough way. On appeal, the 3rd Circuit agreed yesterday in ACLU v. Reno — though the panel reached its decision on different grounds than Reed.

The government argued that COPA was a narrowly drafted way of addressing the compelling interest of protecting minors from harmful materials. The 3rd Circuit agreed that protecting minors was a compelling interest, writing: “It is undisputed that the government has a compelling interest in protecting children from material that is harmful to them, even if not obscene by adult standards.”

However, the panel said that COPA’s definition of “harmful to minors” — with a “contemporary community standards clause” — could not be applied in cyberspace.

The panel wrote: “The overbreadth of COPA’s definition of ‘harmful to minors’ applying a ‘contemporary community standards’ clause — although virtually ignored by the parties and the amicus in their respective briefs but raised by us at oral argument — so concerns us that we are persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute.”

The panel noted that the Supreme Court had expressed concerns about applying contemporary community standards in its 1997 ACLU v. Reno decision when it wrote that online communication “will be judged by the standards of the community most likely to be offended by the message.”

“We are not persuaded that the Supreme Court’s concern with respect to the ‘community standards’ criterion has been sufficiently remedied by Congress in COPA,” the panel wrote.

“Web publishers cannot restrict access to their site based on the geographic locale of the Internet user visiting their site,” the panel wrote.

The 3rd Circuit distinguished this case from the 6th Circuit case U.S. v. Thomas, in which the operators of an electronic bulletin board in California were successfully prosecuted under Tennessee obscenity law. “Thomas is inapposite inasmuch as electronic bulletin boards, just as telephones, regular mail and other brick and mortar outlets, are very different creatures from that of the Web as a whole,” the 3rd Circuit wrote.

The panel said it was “confident that the ACLU’s attack on COPA’s constitutionality is likely to succeed on the merits.”

The panel concluded: “Due to current technological limitations, COPA — Congress’ laudatory attempt to achieve its compelling objective of protecting minors from harmful material on the World Wide Web — is more likely than not to be found unconstitutional as overbroad on the merits.”

“We now call on Congress and the Clinton Administration to close the book on this early chapter of Internet history and embrace free speech online as we have embraced it in every other significant communications medium, said Ann Beeson, the ACLU attorney who argued the case before the 3rd Circuit, in a news release.

Chris Finan, executive director of the American Booksellers Foundation for Free Expression, said: “The decision was quite refreshing. It shows that when regulating speech, one size does not fit all. It is now not unreasonable to wonder how this decision will affect any cyber-law in which community standards is an element of the crime.”

California-based cyberlaw attorney James Tyre said the decision was “significant for its recognition that ‘community’ on the Internet cannot be looked at the same way as in the physical world.”

“It is an important decision because it recognizes that current technology does not allow a Web site to control where its content is disseminated,” Tyre said. “What I post on a Web site may be perfectly acceptable in my community, but below the community standards of Memphis, (Tenn.).”

Department of Justice spokesman Charles Miller said the government would have to review the decision before deciding whether to appeal.