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
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 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.