Court strikes COPA, again
By Jen Colletta
PGN Staff Writer
© 2008 Philadelphia Gay News

The Third Circuit Court of Appeals again ruled that the Child Online Protection Act is unconstitutional.

The law seeks to force all Web sites that contain material that could be considered “harmful to minors” to verify that visitors to their sites are over 18 by requesting credit-card information or through other means. The legislation would delineate which content would be restricted based on “contemporary community standards.”

Those who violated the crime could be fined up to $50,000 and/or imprisoned up to six months.

The July 22 ruling marks the third time the appeals court has ruled against COPA.

Congress passed COPA in October 1998, and President Clinton signed it into law shortly thereafter.

But a group of plaintiffs, including PGN, filed suit, challenging the constitutionality of the law. Several of the plaintiffs argued that restricting access to information on their Web sites could prevent Internet users — both youth and adults — from obtaining vital sexual-health information and advice and resources on LGBT issues, as some individuals could argue that these sites pose a threat to minors.

The District Court for the Eastern District of Pennsylvania issued an injunction in 1998 banning the federal government from enforcing the legislation. The Department of Justice appealed this decision, but the Third Circuit Court of Appeals rejected that appeal the following year, ruling that the legislation’s stipulations were too vague.

The case went before the Supreme Court in 2002, which found that COPA was potentially unconstitutional if there were other technological means of protecting children from viewing objectionable material.

The Third Circuit again considered the case in 2003 and ruled that COPA was unconstitutional and violated citizens’ right to free speech.

DOJ attorneys again brought the case before the Supreme Court in 2004, which remanded the case to District Court for a trial. In March 2007, U.S. District Court Judge Lowell Reed found that COPA violated the First and Fifth Amendments.

The DOJ again appealed this decision, which led to this week’s ruling.

The most recent case was heard before Judges Thomas Ambro, Michael Chagares and Morton Greenberg.

In writing the court’s opinion, Greenberg said that COPA could not withstand tests of vagueness or overbreadth and failed to meet an analysis of strict scrutiny, which dictates that a law “must serve a compelling governmental interest, be narrowly tailored to achieve that interest and be the least restrictive means of advancing that interest.”

Although Greenberg acknowledged that COPA does seek to serve the governmental interest of protecting minors from sexually explicit material on the Internet, he noted that there are other, less restrictive means of achieving this goal.

Aden Fine, senior staff attorney with the American Civil Liberties Union’s First Amendment Working Group, which has represented the plaintiffs since the beginning of the litigation, said Internet protection should come at a less-expensive price than the public’s right to view important information and the providers’ right to distribute that material.

“There are more effective, less intrusive tools available to limit what minors can access on the Internet,” Fine said. “Our clients provide valuable and necessary health and news information. Preventing adults from accessing this information under the guise of protecting children is not permissible.”

The DOJ can now either petition the Third Circuit Court of Appeals to have the case heard before the entire court or can file a petition for a writ of certiorari for the Supreme Court to again hear the ruling.

Jen Colletta can be reached at jen@epgn.com.