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Third Circuit COPAcabana! COPA Struck Down Again

COPA is Congress’ attempt to revive the Communications Decency Act, which was a Congressional attempt to expand indecency rules to the Intertubes.

On the heels of United States v. Stevens, and CBS v. FCC, the Third Circuit just issued a unanimous opinion in ACLU v. Mukasey affirming the District Court’s holding that the Child Online Protection Act (COPA) is unconstitutional as it is overbroad and unconstitutionally vague.

The COPA statute (47 U.S.C. § 231(a)(1)) provides for up to six months imprisonment for anyone who knowingly posts “material that is harmful to minors” on the Web “for commercial purposes.” The statute defined “material that is harmful to minors” as follows:

any communication that is obscene or that:

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

The Third Circuit agreed that the stated Congressional intent, the protection of minors from harmful material on the Web, was a compelling state interest. Accordingly, the statute passed the first hurdle on the road to surviving strict scrutiny, but stumbled thereafter.

In examining whether the regulation was narrowly tailored, the Third Circuit took issue with the definition of “minor.” Under the statute, this could apply to an infant or a 17 1/2 year old. Citing its prior opinion, the Third (re)held:

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.” Id. at 255. We explicitly rejected the Government’s argument that the term “should be read to apply only to normal, older adolescents,” id. at 254, and stated that under either our definition or the government’s proffered definition, “the term ‘minor,’ viewed in conjunction with the ‘material harmful to minors’ test, is not tailored narrowly enough to satisfy the First Amendment’s requirements,” id. at 255. (source)

The court also held that COPA’s limitation to commercial enterprises did not sufficiently narrow its reach.

First, the court determined that COPA is impermissibly overinclusive because it “prohibits much more speech than is necessary to further Congress’ compelling interest. For example, . . . the definitions of ‘commercial purposes’ and ‘engaged in the business’ apply to an inordinate amount of Internet speech and certainly cover more than just commercial pornographers . . . .” Gonzales, 478 F. Supp. 2d at 810 (citations omitted). The court also concluded that COPA is overinclusive because it “applies to speech that is obscene as to all minors from newborns to age sixteen, and not just to speech that is obscene as to older minors . . . .” Id.

The Government contends that COPA is narrowly tailored because it applies only to commercial pornographers and only to material that is harmful to “older” minors. But we addressed and rejected the Government’s arguments in ACLU II, when we found there is nothing in the text of COPA to limit its application solely to “commercial pornographers” or to limit the phrase “material that is harmful to minors” to include material that only is harmful to “older” minors. See 322 F.3d at 253-57. Our prior decision is binding on these issues on this appeal. (source)

The decision also recognizes that the statute’s affirmative defenses available to websites that implement effective age-verification procedures do not cure it of its unconstitutionality. While they might keep kids from accessing porn websites, they were largely ineffective since kids can get access to credit cards quite easily. More importantly, the court was unwilling to allow the chilling effect that such affirmative defenses might create. The court held that age verification would cause some adults to avoid visiting websites that ask for their personally identifying information, and they would impose impermissible costs on Web publishers.

We conclude that the District Court correctly found that implementation of COPA’s affirmative defenses by a Web publisher so as to avoid prosecution would involve high costs and also would deter users from visiting implicated Web sites. It is clear that these burdens would chill protected speech and thus that the affirmative defenses fail a strict scrutiny analysis.

The Government contends that nevertheless these burdens “are no different in kind or degree from the burdens imposed by state laws regulating the sale and commercial display of ‘harmful to minors’ materials. . . . [T]he effect of the statute is simply to requir[e] the commercial pornographer to put sexually explicit images behind the counter.” Appellant’s Br. at 43 (citations and certain internal quotation marks omitted) (second alteration in original).

We rejected this argument in ACLU II. See 322 F.3d at 260 (“Blinder racks do not require adults to compromise their anonymity in their viewing of material harmful to minors, nor do they create any financial burden on the user. Moreover, they do not burden the speech contained in the targeted publications any more than is absolutely necessary to shield minors from its content.”). Blinder racks do not require adults to pay for speech that otherwise would be accessible for free, they do not require adults to relinquish their anonymity to access protected speech, and they do not create a potentially permanent electronic record. Blinder racks simply do not involve the privacy and security concerns that COPA’s affirmative defenses raise, and so the Government’s attempted analogy is ill-fitting. (source)

The court also found that there were less restrictive ways to achieve the government’s stated goal — like the use of internet filters by parents.

Given the vast quantity of speech that COPA does not cover but that filters do cover, it is apparent that filters are more effective in advancing Congress’s interest, as it made plain it is in COPA. Moreover, filters are more flexible than COPA because parents can tailor them to their own values and needs and to the age and maturity of their children and thus use an appropriate flexible approach differing from COPA’s “one size fits all” approach. Finally, the evidence makes clear that, although not flawless, with proper use filters are highly effective in preventing minors from accessing sexually explicit material on the Web. (source)

Accordingly, the Third Circuit (for the third time this week) breathed new life into our long-suffering First Amendment.

In sum, COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional. We reach our result both through the application of the law-of-the-case doctrine to our determination in ACLU II and on the basis of our independent analysis of COPA and would reach the same result on either basis standing alone. (source)

Personally, I like this quote from the trial court decision — and it is one that I frequently quote when I am confronted with the “what about the children” red-herring/hysterics:

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.” ACLU v. Gonzalez, 2007 US DIST LEXIS 20008 (E.D. Pa. 2007)


Note: Bob Corn-Revere, a fellow First Amendment Lawyers’ Association brother was lead counsel in both this and the CBS v. FCC case. Bob is this week’s First Amendment Bad Ass.

Addendum – Ever the humble professional, Bob issued this statement:

While I filed an amicus brief in the COPA case, all the heavy lifting was done by the ACLU, which did a masterful job. Congratulations go especially to Chris Hansen, who gave a brilliant oral argument. I was just happy to be associated with the case, even if just to provide some support.

He still keeps his FABA award.

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