Ashcroft, John, Atty. Gen. v. American Civil Liberties Union, et al. (06/29/2004)

By: Lauren Puerner, Medill News Service

Questions presented

Whether the Child Online Protection Act violates the 1st Amendment to the U.S. Constitution?

Brief

BY LAUREN PUERNER, MEDILL NEWS SERVICE

Imagine: Your pre-teen child sits down at the family computer and, while surfing the World Wide Web, inadvertently comes across a site displaying pornography and curiously starts perusing.

Congress has been trying to protect minors from this situation for almost ten years, mostly through the Child Online Protection Act (COPA), which is meant to shield people under 17 from pornography and other ""harmful"" material on the Web.

COPA, which was signed into law in October of 1998, seeks to restrict minors access to harmful material that is commercially distributed via the Web. In doing so, COPA places strict civil and criminal punishments on any commercial Web publisher who violates it.

Yet COPA also tries to protect these Web publishers from prosecution if they enact age-verification safeguards, such as requiring a credit card number or a digital certificate.

Now imagine: You, an adult over the age of 17, come across pornography on the Web and wish to curiously start perusing.

Under COPA, you would have to present some form of age-verifying identification in order to proceed.

Claiming this requirement, and others provided under COPA, violate adults 1st Amendment rights, the American Civil Liberties Union and various other individuals, entities and organizations filed suit seeking a preliminary injunction.

A little more than three months after the suit was filed, the U.S. District Court for the Eastern District of Pennsylvania accepted the ACLUs argument and granted the injunction. In its ruling, the court held that ""COPA imposes a burden on speech that is protected for adults.""

A 3rd Circuit Court of Appeals affirmed, claiming COPAs definition of ""material harmful to minors,"" which relies on ""community standards"" to determine if the material is ""designed to appeal to É the prurient interest"" of people under 17, places too great of a burden on 1st Amendment rights.

The court reasoned that because the Web does not have geographical boundaries, its publishers cant control where their material is read or viewed, and they therefore have no way of preventing their material from entering a community that would deem it offensive.

Thus the court decided that under COPA, publishers would have to cater to the most puritan communities by censoring material its members would find offensive, even if more liberal communities may consider it acceptable.

On May 21, 2001, the U.S. Supreme Court granted certiorari in the case.

Almost a year later, on May 13, 2002, the Court ruled 8-1 that COPA was not unconstitutional simply because it used ""community standards"" to dictate material harmful to minors. But, in vacating the 3rd Circuits judgment, the Court prohibited the federal government from enforcing COPA until the 3rd Circuit examined the case more fully.

Considering factors other than ""community standards,"" the 3rd Circuit unanimously affirmed its prior ruling, once again enjoining COPA on 1st Amendment grounds.

In the opinion written by Senior Circuit Judge Leonard Garth, the court held that COPAs requirement that the ""harmful material"" be considered ""as a whole"" rather than ""in context"" violates the 1st Amendments requirement to consider context.

The court explained this reasoning using an anecdote from the brief of amicus California Museum of Photography/University of California at Riverside. According to the court, the museum maintains a Web site that displays artwork from its collection. The Web site (which was last visited by the court on Feb. 6) contains several photographs, and each one serves as a link to a particular photographers online exhibit. One of these photographs is of a naked woman.

The court said that viewing this photograph ""as a whole"" and without regard to its surrounding context would meet COPAs definition of ""material harmful to minors."" Yet the court argued, ""This same photograph, when treated in context as a component of the entire Web page, cannot be said to be Ôharmful to minors.""

Thus it ruled, ""The burden that COPA would impose on harmless material accompanying such single images causes COPA to be substantially over-inclusive.""

The 3rd Circuit concluded that COPAs definition of ""minor"" is also significantly over-inclusive because ""the type of material that might be considered harmful to a younger minor is vastly different É than material that is harmful to a minor that is just shy of seventeen years old.""

Garth used sex education as an example to illustrate what may be valuable and not offensive to 16-year-olds but invaluable and offensive to a younger group of minors.

Yet the court used another example to illustrate that the governments ""regular course"" claim is still too broad. The opinion explained that a Web site that deals primarily with medical information, but that publishes a biweekly column on sexual matters, could be liable under COPA.

Next, the court ruled that COPAs defenses from prosecution would deter adults from viewing constitutionally protected speech.

""Many web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial.""

The federal government appealed to the U.S. Supreme Court to defend Congress' continuing attempt to protect minors from offensive material over the internet.

The U.S. Solicitor General argued in the government's petition for writ of certiorari that the 3rd Circuit rejected its argument ""that the question under COPA is whether material has serious value for a legitimate minority of normal older adolescents.""

The court also said COPAs limitation of liability to people making communications ""for commercial purposes"" extends to too many Web publishers. According to the opinion, ""a Web publisher will be subjected to liability due to the fact that even a small part of his or her Web site has Ômaterial harmful to minors.""

The government argued that COPAs reach is limited to businesses that seek to profit from material that is ""harmful to minors"" as ""a regular course"" of their business.

In its brief opposing Supreme Court review, the ACLU argued that studies have shown that up to three-fourths of Web users wont give up personal information to Web sites and that two-thirds of Web users wouldnt even do it for money.

On Oct. 14, 2003, the U.S. Supreme Court accepted review in the case for the second time.