The Child Online Protection Act is Ruled Unconstitutional

Internet Law: In July of 2008, the Third Circuit Court of Appeals ruled that the Child Online Protection Act, 47 U.S.C. Section 231 (“COPA”) was unconstitutional. This was a crucial ruling that affects all websites that display adult content. Under COPA, such websites need to verify that the person accessing the content is not under seventeen years old. This is often done by requiring the user to submit credit card or other similar identifying information before he can access the site. The Court found that while it was laudable for Congress to pursue this goal of protecting children, the procedures set forth in COPA did so by constitutionally overbroad means that ironically, were largely ineffective.

In American Civil Liberties Union v. Mukasey, United States Court of Appeals for the Third Circuit, July 22, 2008 (No. 07-2539), the Court determined that since COPA involved a restriction of free speech, the First Amendment to the United States Constitution required that the Court use strict scrutiny in determining whether the restrictions imposed were constitutional. Because it was a content-based restriction on free speech, it was presumptively invalid and the Government had the burden of proof to show that it was constitutional.

While the Court determined that there was a compelling governmental interest in protecting minors from viewing adult content, the Court held that the statute was not narrowly tailored to achieve those ends. Some of the examples of the failure to narrowly tailor were:

(a) The statute concerns material “taken as a whole” that is prurient. That wording was too expansive.

(b) It applies to all individuals under seventeen, but that necessarily involved those that would not normally be accessing such websites, such as newborn babies.

(c) The definition of “web publisher” is so broad that it applies to those who post content for free where those who post prurient content is an exceedingly small part of their overall postings.

(d) The concern that the requirement that persons accessing sites with adult content provide credit card and other identifying information will discourage persons over seventeen years of age from engaging in legal activities protected by the First Amendment.

One of the notable aspects of the Court’s reasoning was that COPA was not only overbroad, but also ineffective. For example, the Court noted that the fact that COPA does not reach websites situated outside the United States means that simply moving the website’s servers to a foreign location can render the protections of the law ineffective. Moreover, the Court noted that there is a more effective alternative to requiring credit card and similar identification methods. Namely, the Court found that adults can implement adult site blocking software on their children’s computers. The Court suggested that this would be a constitutional, narrowly tailored solution to the problem of minors viewing adult content. It would likely solve the problem for all concerned.

One might ask why Congress did not just rely on such content blocking software in lieu of passing COPA in the first place. The answer appears to lie in the fact that when COPA was passed a number of years ago, content blocking software was not as effective as it is now. Technology has advanced to such a degree that it is now is a reasonably reliable alternative to COPA’s restrictions.

It is possible that this issue ultimately will be taken up by the United States Supreme Court. However, until it is, COPA is unconstitutional in the Third Circuit (New Jersey, Pennsylvania, Delaware and the Virgin Islands).

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC