Free Speech Victory: High Court Bars Enforcement of COPA

On Tuesday, June 29, the Supreme Court, by a 5-4 vote, upheld a lower court ruling barring enforcement of the Child Online Protection Act (COPA) and remanded the case back to District Court. A broad group of plaintiffs -- including the American Booksellers Foundation for Free Expression (ABFFE), A Different Light Bookstore in San Francisco and West Hollywood, City Lights in San Francisco, and Powell's Books in Portland, Oregon -- hailed the decision as a victory for the First Amendment.

"By in effect staying the action of the law, it keeps things as they are," Michael Powell of Powell's Books told BTW. "This will give people more time to come up with a solution that would not restrict adults' First Amendment access to materials -- to give parents better tools [to restrict what their children can view online], and not make a blanket law that restricts access to permissible materials."

ABFFE President Chris Finan said of the decision, "The Supreme Court has once again told Congress that First Amendment rights are paramount on the Internet."

COPA, signed into law in 1998, would make it a crime for any commercial Web site to distribute to a minor material that is "harmful to minors." Those convicted under COPA could be fined up to $50,000 and imprisoned for up to six months. The plaintiffs had argued that the law violates the free expression rights of adults.

Although the Supreme Court declared that COPA probably violates the First Amendment, it postponed a final decision until a lower court determines whether the provisions of the law -- for example, the requirements that adults obtain passwords to access "harmful" material -- are more effective in preventing minors from seeing explicit sexual material than software filters installed by parents. Experts believe that this will be hard for the government to prove for a number of reasons, including the fact that much of the explicit material on the Internet is posted on foreign Web sites that are not subject to American law.

In the decision, Justice Anthony Kennedy, in writing for the majority, noted:

"[T]he potential harms from reversing the injunction outweigh those of leaving it in place by mistake…. There is a potential for extraordinary harm and a serious chill upon protected speech….

"There are substantial factual disputes remaining in the case…. [T]here is serious gap in the evidence as to the effectiveness of filtering software…. For us to assume, without proof, that filters are less effective than COPA would usurp the District Court's fact-finding role. By allowing the preliminary injunction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so.

"Third, and on a related point, the factual record does not reflect current technological reality -- a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the fact-findings of the District Court were entered in February 1999, over five years ago. Since then, certain facts about the Internet are known to have changed…. More and better filtering alternatives may exist than when the District Court entered its findings. Indeed, we know that after the District Court entered its factfindings, a congressionally appointed commission issued a report that found that filters are more effective than verification screens."

The COPA victory may very well affect similar Internet "harmful to minors" challenges at the state level, said Michael Bamberger, general counsel for the Media Coalition. The higher court's ruling could influence the decisions in pending cases in South Carolina and Ohio. "In the South Carolina case, the judge said he was waiting to see what the Supreme Court would [rule in the COPA case]," he explained. "[Overall,] I think the effect of the COPA decision is positive, since it will reinforce lower court decisions in respect to state statutes."

ABFFE, the Media Coalition, and others have successfully challenged cases in three states where Internet "harmful to minors" laws could have stopped adults from viewing materials on the Web that they already have a constitutional right to view in bookstores and libraries. The challenges occurred in New Mexico, New York, and Vermont. --David Grogan