By David L. Hudson Jr.
First Amendment scholar
Pornography on the Internet has become a lightning rod for legislation,
lawsuits and fierce public debate. State and federal legislators have passed
politically popular laws designed to protect children from online smut.
Supporters insist that the laws are necessary to protect minors from an online
Civil liberties groups have opposed the measures, claiming that they threaten
freedom of speech. They argue that the online “sanitation” laws should not
sacrifice adult free-speech rights and the rights of older minors. Continuing
litigation that has now spanned nearly a decade over a federal law known as the
Child Online Protection Act — COPA — could affect the future of Internet speech
regulation. So far, the federal courts have invalidated Congress’ attempts at
criminalizing such speech on the Internet.
Communications Decency Act
The free-speech battle on the Internet
did not begin with COPA. Instead, it began in 1996 with the hasty passage of the
Communications Decency Act — or CDA. Two provisions of CDA prohibited online
transmission or display of “indecent” and “patently offensive”
The law did not define the terms “indecent” or “patently offensive.” The
American Civil Liberties Union and other groups persuaded a panel of three
federal judges in Philadelphia to strike the two provisions. That ruling was
later affirmed by the U.S. Supreme Court in its June 1997 decision Reno v.
Writing for the Court, Justice John Paul Stevens noted that “our cases
provide no basis for qualifying the level of First Amendment scrutiny that
should be applied to this medium.”
The Supreme Court also ruled that the language of the provisions created too
much uncertainty about what types of speech could be prohibited. The court
questioned whether serious discussions about birth control, homosexuality,
prison rape, and even First Amendment issues in prior decisions would violate
“The breadth of the CDA’s coverage is wholly unprecedented,” Stevens wrote.
“The general, undefined terms ‘indecent’ and ‘patently offensive’ cover large
amounts of nonpornographic material with serious educational or other value.”
Child Online Protection Act
Immediately after the Court’s decision,
Congress went to work to craft another federal law that would address some of
the Court’s concerns. The result was the Child Online Protection Act, which
Congress passed in October 1998.
COPA, which also failed to survive a series of court challenges on First Amendment grounds, criminalized the making of "any communication for commercial purposes"
that was distributed via the World Wide Web and was "harmful to minors." Penalties
included a six-month imprisonment and $50,000 fine for each violation.
In several respects, COPA was more narrowly drafted than its predecessor. For example, it applied to communications on the World Wide Web, rather than the
Internet as a whole. COPA purported to target only commercial pornographers. And it criminalized only material deemed "harmful to minors," unlike the
CDA, which criminalized "indecent" material.
The day after COPA was signed into law, the ACLU and 16 other organizations
ranging from an online distributor of condoms to a gay-lesbian online
bookstore challenged it on First Amendment grounds.
In February 1999, a federal judge in Philadelphia issued a preliminary
injunction preventing enforcement of COPA pending the outcome of a full trial.
He reasoned that voluntary use of filtering or blocking software could well be a
less-restrictive alternative to this broad law and its stiff fines and prison
“Indeed, perhaps we do the minors of this country harm if First Amendment
protections, which they will with age inherit fully, are chipped away in the
name of their protection," wrote the federal judge.
The government appealed to the 3rd U.S. Circuit Court of Appeals. The 3rd
Circuit panel also prevented enforcement of the law, though on
different grounds, in June 2000. The appeals panel said COPA's definition of
“harmful to minors” — with a “contemporary community standards” clause — could
not be applied in cyberspace.
The panel wrote: “The overbreadth of COPA's definition of 'harmful to minors'
applying a 'contemporary community standards' clause — although virtually
ignored by the parties and the amicus in their respective briefs but raised by
us at oral argument — so concerns us that we are persuaded that this aspect of
COPA, without reference to its other provisions, must lead inexorably to a
holding of a likelihood of unconstitutionality of the entire COPA statute.”
The appeals panel focused on the fact that “Web publishers cannot restrict
access to their site based on the geographic locale of the Internet user of the
site.” As a result, the court reasoned, Web publishers must ensure that their
sites comply with the standards of the most stringent community.
The government argued that traditional obscenity law provides that defendants
could be held liable based on community standards as outlined in the 1973
v. California. But, the panel was not persuaded, finding that “Miller …
has no applicability to the Internet and the Web, where Web publishers are
currently without the ability to control the geographic scope of the recipients
of their communications.”
1st Supreme Court decision
The government appealed the 3rd Circuit’s
decision to the Supreme Court in Ashcroft
v. ACLU. On May 13, 2002, the high court ruled that the 3rd Circuit had
acted too quickly in dismissing COPA solely on the community-standards
The Court ruled 8-1 to send the case back to the 3rd Circuit for further
constitutional review. Justice Clarence Thomas wrote that the Court’s obscenity
cases establish that publishers must conform to different community standards.
“If a publisher chooses to send its material into a particular community,
this Court’s jurisprudence teaches that it is the publisher’s responsibility to
abide by that community’s standards,” Thomas wrote. “The publisher’s burden does
not change simply because it decides to distribute its material to every
community in the Nation.”
Thomas also pointed out that striking down COPA because of its use of
community standards would spell doom for federal obscenity statutes as applied
online. Thomas emphasized that the Court’s opinion was “quite limited.”
He reasoned that “prudence dictates allowing the Court of Appeals to first
examine these difficult issues.”
Other justices wrote separately to stress their difficulty with applying
local standards to the Internet. Justice Sandra Day O’Connor wrote that
“adoption of a national standard is necessary in my view for any reasonable
regulation of Internet obscenity.”
In a similar vein, Justice Stephen Breyer wrote: “To read the statute as
adopting the community standards of every locality in the United States would
provide the most puritan of communities with a heckler’s veto affecting the rest
of the Nation.”
Only the author of the Court’s decision in Reno v. ACLU, Justice John
Paul Stevens, dissented. “It is quite wrong to allow the standards of a minority
consisting of the least tolerant communities to regulate access to relatively
harmless messages in this burgeoning market,” he wrote.
After the Supreme Court decision, the parties again filed
legal papers and argued before the 3rd Circuit. On March 6, 2003, the
three-judge panel of the 3rd Circuit again affirmed the district court judge’s
granting of a preliminary injunction, preventing the government from enforcing
COPA. In its opinion, ACLU v. Ashcroft (No. 99-1324), the appeals court
determined that COPA was not narrowly tailored enough in several aspects to
survive First Amendment review.
The panel focused on the definition of “harmful to minors” in COPA, which
describes such material as “any communication, picture, image, file, article,
recording, writing, or other matter of any kind” that satisfies the
prurient-interest, patently offensive and serious-value prongs of the
The problem with this definition, according to the panel, is that one sexual
image could be considered harmful to minors even “if it were to be viewed in the
context of an entire collection of Renaissance artwork.”
The panel also found constitutional flaws in the fact that the statute did
not distinguish between different age levels of minors. “Regardless of what the
lower end of the range of relevant minors is, Web publishers would face great
uncertainty in deciding what minor could be exposed to its publication, so that
a publisher could predict, and guard against, potential liability,” the panel
The appeals court also determined that COPA’s definition of “commercial
purposes” was too broad, applying to far more than commercial pornographers. “We
are satisfied that COPA is not narrowly tailored to proscribe commercial
pornographers and their ilk, as the Government contends, but instead prohibits a
wide range of protected expression,” the panel wrote.
The panel also wrote that the voluntary use of filtering software by parents
was a less speech-restrictive alternative than the broad criminal penalties
imposed by COPA.
In addition, the panel found that COPA “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
Supreme Court and COPA — for the 2nd time
The Justice Department
appealed the decision to the Supreme Court, which again agreed to review
COPA. On June 29, 2004, the Court ruled 5-4 that the district court did not err
in blocking enforcement of COPA pending a full trial on the merits of the First
Writing for the majority in Ashcroft
v. ACLU II, Justice Anthony Kennedy wrote that the district court
reasonably could conclude that blocking and filtering technology were a less
speech-restrictive alternative than COPA, a criminal statute.
“Filters are less restrictive than COPA,” Kennedy wrote. “They impose
selective restrictions on speech at the receiving end, not universal
restrictions at the source.”
Kennedy also pointed out that filters could be more effective in shielding
minors from pornography, because filters can block harmful material from
anywhere, while COPA applies only to commercial pornographers based in the
Leaving the injunction in place pending a trial, Kennedy observed, would
discourage self-censorship by Web-site owners. “Where a prosecution is a likely
possibility, yet only an affirmative defense is available, speakers may
self-censor rather than risk the perils of trial,” he wrote. “There is a
potential for extraordinary harm and a serious chill upon protected speech.”
The ACLU saw the Court’s second decision on COPA as a victory for freedom of
speech. "Today’s ruling from the Court demonstrates that there are many less
restrictive ways to protect children without sacrificing communication intended
for adults," said ACLU Associate Legal Director Ann Beeson in a news
release. Beeson argued the case before the justices in March 2002 and
earlier in 2001.
“By preventing Attorney General (John) Ashcroft from enforcing this
questionable federal law, the Court has made it safe for artists, sex educators,
and web publishers to communicate with adults about sexuality without risking
jail time," Beeson added.
After more COPA litigation, high court's final no
The case went back down
to the federal district court, where the judge held a bench trial (trial before
a judge, not a jury) on the merits of COPA. Senior U.S. District Judge Lowell
Reed Jr. issued an 84-page opinion on March 22, 2007, in ACLU v.
Gonzales that struck down the law. He concluded that the law violated
the First Amendment because the government failed to show that COPA, clearly a
content-based law, was narrowly drawn enough to satisfy strict scrutiny — the
highest form of judicial review. Strict scrutiny requires the government to
prove it has a compelling interest for the law at issue. Reed noted that filters
were a less speech-restrictive alternative than COPA. Reed also determined that
COPA was too broad and vague.
The government once again appealed to the 3rd Circuit, which heard oral
arguments in June 2008. On July 22, 2008, a three-judge panel of the 3rd Circuit
ruled in ACLU v.
Mukasey that COPA violated the First Amendment. “In sum, COPA cannot
withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is
unconstitutional,” the appeals court panel concluded.
The government appealed yet again to the U.S. Supreme Court. But on Jan. 21, 2009, the justices declined to review Mukasey v. ACLU (08-565). COPA thus perished without ever having taken effect.
"For over a decade the government has been trying to thwart freedom of speech
on the Internet, and for years the courts have been finding the attempts
unconstitutional," said Chris Hansen, the ACLU's lead attorney on the case. “It
is not the role of the government to decide what people can see and do on the
Internet. Those are personal decisions that should be made by individuals and
Updated January 2009