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ACLU v. Mukasey: Third Circuit Holds Child Online Protection Act Unconstitutional

Commentary First Amendment

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.

This case marks the next chapter in a decade-long debate over COPA. In the first challenge to COPA by the ACLU and various Internet publishers in 1999, the United States District Court for the Eastern District of Pennsylvania upheld a motion for preliminary injunction, finding that COPA would overly burden free speech through financial and other deterrents, and that filtering and blocking technology was likely a less restrictive and more effective way to protect minors. The Third Circuit upheld the injunction on narrower grounds, holding that COPA's use of "community standards" as a way to define what is harmful to minors was impermissibly vague. The Supreme Court vacated and remanded for further proceedings, holding that the  "community standards" language did not in itself render the statute unconstitutionally broad.

On remand, the Third Circuit again upheld the injunction, citing additional reasons for COPA's unconstitutionality under the strict scrutiny test. The government was again granted certiorari and the Supreme Court affirmed the Third Circuit's decision, but remanded the case to district court for a full trial on the merits. The District Court then permanently enjoined the Attorney General from implementing the Act, and held that the government failed to meet its burden of showing that the Act was the most effective and least restrictive way for the government to acheive its objective.

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The Marketplace vs. The Ideas: The First Amendment Challenges to Internet Commerce