A No-Decision Decision: Supreme Court Sends COPA Back to Court of Appeals

In a complex decision that provided neither side with exactly what it wanted, on May 13, the U.S. Supreme Court reversed a lower court ruling that had declared the Child Online Protection Act (COPA) unconstitutional. In a vote of 8-1, the Supreme Court vacated a decision of the Third U.S. Court of Appeals, which had held that COPA was unconstitutional because the law’s use of "community standards" to identify material that was harmful to minors was "substantially overbroad."

COPA, signed into law in 1998, makes 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 Third U.S. Court of Appeals last year blocked enforcement of COPA. The American Civil Liberties Union (ACLU), the American Booksellers Foundation for Free Expression (ABFFE), City Lights Bookstore, A Different Light Bookstore, and Powell's Books are among the 17 companies and civil liberties groups that have challenged the law.

The Supreme Court’s decision does not affect a district court injunction preventing enforcement of the law, and the court’s ruling, written by Justice Clarence Thomas, noted that "the scope of our decision is quite limited." The decision made clear that "we hold only that COPA’s reliance on community standards to identify ‘material that is harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment." The court did not "express any view" regarding whether the law is unconstitutionally broad for other reasons or "unconstitutionally vague."

Rather than rule on the law’s constitutionality, the Supreme Court’s decision noted that "prudence dictates allowing the Court of Appeals to first examine" legal issues that have not yet been ruled on.

Chris Hansen, senior staff counsel for ACLU, noted to BTW that "I think no damage was done by the court to the First Amendment by this decision, because they really didn’t do much." And Chris Finan, ABFFE president, said, "The injunction remains in effect, which is the important thing. And we look forward to the Supreme Court addressing the issue that they should have been addressing from the beginning, which is not the community standards issue," but, rather the issue of age verification. "It’s impossible to verify age in cyberspace. So you can’t restrict material for minors without also restricting it for adults," he said.

It’s expected that within two months the court of appeals will contact the parties in the case. The court could ask for additional oral arguments, additional legal briefs, or it could send the case back to the district court for trial.