Appeals Court Strikes Down the Child Online Protection Act (Again)

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Yesterday, the Third Circuit Court of Appeals affirmed a lower court decision ruling that the Child Online Protection Act (COPA) violates the First Amendment.  COPA makes it a crime to knowingly post sexually explicit material that is "harmful to minors” on the web  “for commercial purposes.” Although Congress apparently intended that COPA apply to commercial pornographers, the statute's broad definition of "commercial purposes" could draw in ordinary websites that make money from advertising, which is why Salon Media Group, Nerve.com, and Dan Savage, among others, joined in the lawsuit challenging the Act.

Among other things, the Third Circuit determined that "COPA, like the Communications Decency Act before it, 'effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,' and thus is overbroad." The court also ruled that the statute was unconstitutionally vague and not narrowly tailored to the government's admittedly compelling interest in protecting minors from harmful material on the Internet. 

The Third Circuit decision (full-text) is just the latest round in nearly ten years of litigation, and it is the sixth time that a court has stopped the law from going into effect, according to a report on Law.com. In 2004, in Ashcroft v. ACLU, 542 U.S. 656 (2004), the U.S. Supreme Court upheld an injunction against the law going into effect and sent the case back to the district court for a trial on the merits, with instructions to consider whether technological developments in filtering technology and changes in the legal landscape impacted the law's constitutionality. On remand, a Pennsylvania district court ruled after a bench trial that COPA violated the First Amendment, sparking the appeal decided yesterday.

There's lots of excellent coverage of the decision out there, but Marc Randazza's post, Third Circuit COPAcabana! COPA Struck Down Again, provides perhaps the best synopsis of the legal issues. Other notable coverage includes:

 

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