A U.S. District Court grants an injunction against the enforcement of the 1998 Child Online Protection Act (COPA) on the grounds that it violates First Amendment rights of adults.

by dc.internet.com Staff [March 10, 2003]

A Pennsylvania appeals court has granted an injunction against the enforcement of the controversial 1998 Child Online Protection Act (COPA), ruling that the so-called anti-pornography law violates the First Amendment rights of adults.

Last May, the U.S. Supreme Court partially lifted a bar on the enforcement of the law and sent it back to the lower court for review of some other sections but the latest injunction makes it clear that COPA, as a content-based restriction on protected speech, "violated the strict scrutiny test."

The COPA was signed into law during the Clinton administration and was intended to make it a crime to place sexually explicit material on the Internet where minors could view it. However, the District Court found that "although COPA addressed a compelling governmental interest in protecting minors from harmful material online, it was not narrowly tailored to serve that interest, nor did it provide the least restrictive means of advancing that interest."

In the 59 page opinion [.pdf], the court ruled that COPA was not narrowly tailored to punish commercial pornographers but "instead prohibits a wide range of protected expression."

It is the second time the lower court has denounced COPA as a law that violates freedom of expression rights. When the first COPA rejection was issued, the Supreme Court reviewed the decision and ruled that the 3rd Circuit could not bar enforcement of the law on the basis that it relies on community standards to identify harmful material.

The law required commercial website operators to use credit cards or other adult access systems to prevent minors from viewing the material. COPA imposes criminal and civil penalties of up to $50,000 per day for violations.

Congress drafted COPA in an effort to create a more narrowly defined law than the Communications Decency Act (CDA) of 1996, which the Supreme Court struck down in 1997 as unconstitutional.

In the latest injunction, which is a blow to the Justice Department's attempts to enforce the online anti-porn law, the court ruled that COPA limited its targeted material to that which is designed to appeal to the "prurient interest" of minors. "It leaves that judgment, however, to 'the average person, applying contemporary community standards' and 'taking the material as a whole."

"When contemporary community standards are applied to the Internet, which does not permit speakers or exhibitors to limit their speech or exhibits geographically, the statute effectively limits the range of permissible material under the statute to that which is deemed acceptable only by the most puritanical communities," the appeals court ruled, noting that this limitation by definition "burdens speech otherwise protected under the First Amendment for adults as well as for minors living in more tolerant settings."

The Justice Department is expected to file an appeal with the Supreme Court.

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