JOLT Digest

Third Circuit Upholds Online Gambling Ban
By Caitlyn Ross – Edited by Amanda Rice

Interactive Media Entertainment and Gaming Association Inc. v. Attorney General of the United States, No. 08-1981 (3d Cir. Sept. 1, 2009)
Opinion (Hosted by wired.com)

On September 1, 2009, the U.S. Court of Appeals for the Third Circuit affirmed the United States District Court for the District of New Jersey decision, which upheld the Unlawful Internet Gambling Enforcement Act of 2006.

Wired.com provides an overview of the case. The Wall Street Journal features an analysis of the decision and its potential effects on online gambling. Additional analysis can be found on ZDnet and Law.com. (more…)

Third Circuit Holds Child Online Protection Act Unconstitutional
By Anna Lamut – Edited by Nicola Carah

ACLU v. Mukasey
Third Circuit, July 22, 2008, No. 07-2539
Slip Opinion

On July 22, the Third Circuit affirmed the United States District Court for the Eastern District of Pennsylvania’s decision, finding that the Child Online Protection Act (”COPA”), 47 U.S.C. § 231, violated the First and Fifth Amendment, and permanently enjoined its enforcement. COPA imposes civil and criminal penalties for anyone who, “for commercial purposes,” knowingly posts “material that is harmful to minors” on the World Wide Web. 47 U.S.C. § 231(a)(1).  While broad, COPA allows web publishers a complete defense if they ”require[] use of a credit card, debit account, adult access code, or adult personal identification number,” “accept[] a digital certificate that verifies age,” or use other similar measures. 47 U.S.C. § 231(c).  COPA has been mired in litigation since it was first enacted in October of 1998, including two trips to the Supreme Court;  this is the third time that the Third Circuit has held the Act unconstitutional.

Judge Morton I. Greenberg, writing for a unanimous panel with Judges Thomas L. Ambro and Michael A. Chagares, found that COPA failed to meet the strict scrutiny standard for restrictions on constitutionally protected speech. To survive strict scrutiny review, regulation that restricts protected speech must serve a “compelling government interest”, be “narrowly tailored” to serve the interest, and use the least restrictive means available.  The Third Circuit found that COPA served the compelling government interest to protect children, but that it failed to meet the second and third prongs of the test.  The court held that COPA was insufficiently narrowly tailored because, inter alia, minors were broadly defined as any person under the age of 17, and the standard for harmfulness did not require that the material be viewed in context.  In addition, the court found the definition of a “commercial” publisher to be overly inclusive and the affirmative defenses available to such publishers — evidence of the implementation of credit card shields or similar measures — unduly restrictive both to publishers and adults wishing to access the material. Finally, the court held the government failed to demonstrate that internet content filters, deemed a less restrictive option, were less effective than COPA.

The Electronic Privacy Information Center hosts the full text of COPA and related House Report.

The Center for Democracy and Technology, an online rights advocacy group that filed an amicus brief for an earlier Third Circuit COPA case, lauded the decision. CDT General Counsel John Morris states, “This empowers parents, respects the First Amendment and acknowledges the diverse sensibilities of American families.”

Professor Susan Crawford of the University of Michigan Law comments on the decision, and addresses the possibility that the case will once again return to the Supreme Court.

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Third Circuit Vacates FCC Fine
By Jon Choate — Edited by Stephanie Weiner

CBS Corp. v. Federal Communications Commission
Third Circuit, July 21 2008, No. 06-3575
Slip Opinion

On July 21, the Third Circuit vacated an FCC order fining CBS $550,000 for the nine-sixteenths of one second broadcasting of Janet Jackson’s bare right breast during the halftime show of Super Bowl XXXVIII in February 2004. The court held that the FCC had departed from its prior policy in fining CBS for the “fleeting image” and that this change was “arbitrary and capricious” under the Administrative Procedure Act § 706. The court also held that Janet Jackson and Justin Timberlake were independent contractors with respect to CBS while performing at the half-time show and that CBS could not be held vicariously liable for their actions without proof of scienter.

The case was remanded for further proceedings consistent with its ruling; however, the court noted that any further action would be declaratory in nature, as the FCC cannot retroactively penalize CBS.

Ken Ferree, president of The Progress & Freedom Foundation (“PFF”) hailed the ruling as a reinforcement of First Amendment rights. Adam Thierer, a senior fellow at the PFF, expects the FCC to appeal the decision, as it did a Second Circuit opinion holding that the FCC’s policy sanctioning “fleeting expletives” was arbitrary and capricious.

Jonathan Rintels, Executive Director of the Center for Creative Voices in Media, also applauded the decision, focusing in particular on the “chilling” effect the FCC’s decisions might have on freedom of expression.

The Parents Television Council (“PTC”) was somewhat less pleased with the decision, which, in its view, “hijacked the will of the American people” and the “intent of Congress.”

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