Third U.S. Circuit Court of Appeals Declares COPA Unconstitutional … Again

On March 6, the Third U.S. Circuit Court of Appeals in Philadelphia ruled for the second time that the Child Online Protection Act (COPA) is unconstitutional. The court found that COPA violates adults' right to free speech, is overly broad, and fails "the strict scrutiny test." It is expected that the Justice Department will appeal the decision to the U.S. Supreme Court.

"Obviously, we're pleased by the decision," Chris Hansen, senior staff counsel for ACLU, one of the groups challenging the law, told BTW. "We've argued all along that COPA is unconstitutional because it burdens speech and the third circuit court agrees."

Aside from the ACLU, the American Booksellers Foundation for Free Expression (ABFFE), EPIC, City Lights Bookstore, A Different Light Bookstore, and Powell's Books are among the 17 companies challenging the law. (For a previous article on COPA, click here.)

COPA, signed into law in 1998, makes it a crime for any commercial Web site to distribute to a minor material considered to be "harmful to minors." Those convicted under COPA could be penalized with up to $150,000 for each day of violation and up to six months in prison. In June 2000, the Third U.S. Circuit Court of Appeals blocked enforcement of COPA. The court ruled that the statute was invalid because, under COPA, harmfulness is to be weighed by "community standards," meaning that the most restrictive community's norms would become the standard for even the most tolerant communities.

Though the court ruled in their favor, at the time, the plaintiffs stressed that COPA was unconstitutional not because of its reliance on community standards, but because the law would restrict adults' access to constitutionally protected materials.

In May 2002, the U.S. Supreme Court vacated the Court of Appeals' ruling and noted 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," though its decision did not affect the injunction preventing enforcement of the law. The Supreme Court asked the U.S. Court of Appeals to examine the law once again.

In its most recent ruling, the lower court's decision regarding COPA was more closely in tune to the position tendered by ACLU, ABFFE, and other plaintiffs.

In its decision, the court wrote: "We conclude that the statute is substantially overbroad in that it places significant burdens on Web publishers' communication of speech that is constitutionally protected as to adults and adults' ability to access such speech. In so doing, COPA encroaches upon a significant amount of protected speech beyond that which the government may target constitutionally in preventing children's exposure to material that is obscene for minors."

Said ABFFE President Chris Finan, "We're pleased that the Third Circuit Court for the second time has struck down COPA and that this time it has made its decision based on the arguments that were presented to it." If the case goes back to the Supreme Court, he added, "This time it will be [argued] on the right issue." -- David Grogan