Federal judge deals blow to COPA

Tuesday, February 2, 1999

“The public interest is not served by the enforcement of an unconstitutional law,” a federal judge said yesterday in granting a preliminary injunction that prevents government officials from enforcing Congress' second attempt at regulating speech on the Internet — the Child Online Protection Act.

The American Civil Liberties Union and the 16 other plaintiffs contend in their lawsuit, ACLU v. Reno, that COPA suffers from the same constitutional flaws as Congress' first Internet censorship law — the Communications Decency Act.

In June 1997, the U.S. Supreme Court ruled in Reno v. ACLU that two provisions of the CDA which criminalized “indecent” and “patently offensive” online communications violated First Amendment free-speech rights.

In response to that ruling, Congress responded with a narrower law — COPA — that, in the words of U.S. District Judge Lowell Reed, “represents congressional efforts to remedy the constitutional defects in the CDA.”

COPA employed a different legal standard — a “harmful-to-minors” standard as opposed to a broader indecency standard — and was designed to target commercial pornographers.

COPA criminalizes the making of “any communication for commercial purposes” that is distributed via the World Wide Web and is “harmful to minors.” Penalties include a six-month imprisonment and a $50,000 fine for each violation.

One day after President Clinton signed COPA into law last Oct. 21, the 17 plaintiffs — who range from an online condom distributor to an online bookstore that caters to gay and lesbian issues — challenged the law in a Philadelphia federal court.

Reed granted a temporary restraining order on Nov. 19 that was to expire on Dec. 4. However, by agreement with the government, that order was extended until yesterday.

Reed heard five days of testimony and one day of argument leading up to yesterday's order. The plaintiffs say COPA violates the First Amendment because it restricts material constitutionally protected for adults. The defendants counter that the law serves the compelling governmental interest of protecting minors from harmful material.

The defendants also argue that the law is constitutional because it provides plaintiffs with defenses to prosecution if they require users of their Web sites to use a credit card, adult access code or adult personal identification number.

Reed acknowledged that the case against COPA presented the court with “two diametric interests” — the constitutional right to freedom of speech and the protection of minors.

The judge first rejected the government's motion to dismiss the case. Attorneys for the government had argued that the plaintiffs lacked standing to challenge the law because none of the plaintiffs' Internet speech was “harmful to minors” and their fears of possible prosecution under COPA were speculative.

However, Reed noted that “there is nothing in the text of COPA that limits its applicability to so-called commercial pornographers.” The judge also reasoned that because nearly all of the plaintiffs posted Web content that was “sexual in nature,” their fears that they could face prosecution under COPA were “not unreasonable.” For these reasons, Reed denied the government's motion to dismiss.

Next, Reed analyzed whether to grant the plaintiffs' motion for a preliminary injunction. He first noted that COPA was a content-based law subject to the highest level of judicial scrutiny. In First Amendment law, content-based laws — laws that restrict speech based on the content of the speech — must serve a compelling governmental interest in the least restrictive means.

Reed found that the government had a compelling interest in protecting minors from harmful material, but he noted that the law was not very effective because minors could gain access to harmful material on “foreign Web sites, non-commercial sites and online via protocols other than http.”

Reed also was skeptical of the government's argument that COPA was the least restrictive way of protecting minors from harmful material.

He noted that filtering and blocking software could be less restrictive, writing: “The record before the Court reveals that blocking or filtering technology may be at least as successful as COPA would be in restricting minors' access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web site operators.”

Reed also said Congress could have achieved its goal of protecting children from “pornographic teasers” — free sexually explicit pictures offered by commercial pornographers on Web sites — by only prohibiting “pictures, images or graphic image files” that are sexually explicit rather than its current language of “any communication, picture, image, graphic image, file article, recording, writing or other matter of any kind.”

Additionally, Reed said that the law could have been written to further its goal of protecting children without “possibly excessive and serious criminal penalties.”

The judge began his conclusion by emphasizing that the government's interest in protecting minors “particularly resonates with the Court,” but that courts must “not protect the majoritarian will at the expense of stifling the rights embodied in the Constitution.”

Reed then cited U.S. Supreme Court Justice Anthony Kennedy's concurring opinion in the 1989 flag-burning case Texas v. Johnson to demonstrate that sometimes courts have to protect free-speech rights even in the most difficult of cases.

Kennedy, facing what Reed called a “similar dilemma,” wrote: “The hard fact is that sometimes we must make decisions that we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.”

Reed concluded by emphasizing the First Amendment rights of minors, writing: “Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”

Reed ordered the preliminary injunction to remain in effect until a full trial could be held in the case.

The government has 60 days to decide whether to proceed with a full trial in front of Reed at the district court level or appeal the preliminary injunction to the 3rd U.S. Circuit Court of Appeals.

Bob Flores, senior counsel for the National Law Center for Children and Families, said he was “disappointed with the result.”

“However, this is just the first step,” he said. “Ultimately, this case will end up in the U.S. Supreme Court. We will battle long and hard to continue the battle to protect minors.”

“The ACLU has carefully whipped up hysteria and paranoia over this very reasonable law,” said Shyla Welch, communications director for the anti-pornography group Enough is Enough, in a news release. “COPA gives the World Wide Web exactly the same First Amendment protection as print. The judge merely bought into the ACLU's disgraceful fear-mongering.”

However, ACLU national staff attorney Chris Hansen applauded the judge's order, saying in a news release: “After six days of complicated testimony, this case came down to first principles. In the marketplace of ideas, free speech is one thing you shouldn't have to pay for.”

Chris Finan, president of the American Booksellers Foundation for Free Expression, which is one of the plaintiffs in the case, said that Reed's order represented “an inspiring example of how the legal system should work.”

The ruling “showed that even though Reed has serious concerns about protecting minors and wanted in a way to uphold the law, that it was simply the right thing to uphold the Constitution and strike the law down,” he said. “This was a clear verdict from a concerned judge that the law is not even close to passing constitutional muster.

“One of the most striking things about the decision was that the judge found that COPA was not as effective as filtering software,” Finan said.