The element of COPA - the "Child Online Protection Act" - that is the scourge of adult Webmasters requires surfers to post a valid credit card before being granted access to adult content. You may recall that, after the Court of Appeals in Philadelphia affirmed a preliminary injunction against the enforcement of that law, the Supreme Court of the United States, in a very splintered opinion, found flaw in the reasoning of the Court of Appeals, but dished it back for further pondering, since there were many issues that the lower court had not yet considered. The Third Circuit completed this pondering, and again upheld the preliminary injunction. American Civil Liberties Union v. Ashcroft, ___ F.3d ___, 2003 WL 755083 (3rd Cir., March 6, 2003).
Recall that the COPA law bars access by minors to content deemed "harmful" to them. A surfer has been able to establish majority with a valid credit card number. Visa (which has more power than God) didn?t like that, proclaiming that minors often had credit cards in their own right, and therefore, credit cards were not an appropriate method of verifying adulthood. Visa, you see, wants to give high school kids credit cards; then, after they turn 18 - becoming adults who can suffer debts they rang up as minors, which debts they otherwise could blow off because of laws about minors entering into contracts - they become hooked on plastic. After that, they run up hefty Visa bills that they can?t afford to pay and which they can?t escape by bankruptcy because the Republicans are going to effectively eliminate bankruptcy for their friends, the merchant banks.
Returning from my little anti-Visa tirade to the topic at hand, it is important to understand the procedural posture of the COPA case. The day after COPA came into effect, lo these many years ago (1998), the American Civil Liberties Union and a host of others filed a federal lawsuit in Philadelphia challenging it. They immediately garnered a temporary restraining order: an emergency, short-lived injunction to preserve the status quo for a brief time, during which the court evaluates the question of whether an injunction pending trial - a "preliminary injunction" (in some jurisdictions called a "temporary injunction") - should be issued.
After hearing evidence, the lower court issued the preliminary injunction, from which the government appealed. The Court of Appeals upheld the preliminary injunction, finding that "community standards," language key to COPA, was unworkable in the context of the Internet. The Supreme Court reversed in a very fractured opinion, leaving the preliminary injunction in effect and collectively finding that the Court of Appeals must look at other factors. Significantly, the Supreme Court did not foreclose upholding the preliminary injunction, even in part, due to the "community standards" problem; but the Court of Appeals was required to review other issues that it did not consider the first time.
On remand from the Supreme Court, the Court of Appeals has once again upheld the preliminary injunction, finding that COPA likely is unconstitutional and, in so doing, condemning it even more roundly than before. The published opinion lists page after page of defects in the law, some of which are quite innovative from a constitutional law perspective.
In slamming the definition of what material is "harmful to minors," the court first noted that the "taken as a whole" requirement is a problem because, as Supreme Court Justice Kennedy pointed out in his concurring opinion, "everything on the Web is connected to everything else." But the plain language of COPA, the court noted, requires viewing images in isolation - out of context - which runs afoul of Supreme Court precedent defining what is harmful to minors and, quite significantly, what is legally obscene where only adults are involved. This will prove interesting in adult-obscenity litigation that is cooking.
Remarkably, the court tackled the issue of whether what is harmful to a young minor is necessarily harmful to a 17-year-old. For years, the author of this column has been advocating the position that evaluating whether material is harmful to a minor necessarily must be a function of the age of the recipient minor - for the obvious reason that, for example, a 17-year-old is psychologically equipped to deal with sexually oriented materials that would be damaging to a 7-year-old. Oddly, other courts addressing the issue assumed that material is either harmful to minors or it is not, regardless of the minor?s age; most notably American Booksellers v. Webb, 919 F.2d 1143 (11th Cir. 1990), the decision upholding what has become the model for harmful-to-minors statutes around the country.
The court also found fault with the fact that COPA is limited to communications "for commercial purposes." The Supreme Court?s 1997 CDA decision found fault with the predecessor to COPA for broadly regulating non-commercial transactions; but the new COPA decision found that the "for commercial purposes" language still swept too many non-commercial activities into its scope. Congress and other legislative bodies all have a penchant for drafting laws broadly so that clever lawyers are unable to come up with loopholes. Fortunately, this broad-language trick usually fails where the law seeks to regulate protected speech.
Perhaps most significantly, the court found fault with the credit card-access defense - the centerpiece of COPA. Requiring payment of an access fee and disclosure of personal information placed too much burden on the audience, the court found. Moreover, it appeared to the court that blocking and filtering would work better.
Finally, although federal courts have the authority to construe statutes to render them constitutional, the court found COPA was impossible to save that way. While a federal court can strike a word or a phrase, construe an ambiguous definition or do other minor surgery to a federal statute to save it from being struck down as unconstitutional, it cannot go so far as to invade the legislative prerogative. And with respect to COPA, the court found that the amount of surgery needed to rescue it would be a "serious invasion of the legislative domain." Significantly, however, a reading of the court?s opinion leaves very substantial doubt that Congress ever could impose a credit card barrier to accessing Websites containing materials that are "harmful to minors," assuming that a constitutionally acceptable definition of that term ever could be written.
Congress? first attempt to require the posting of a credit card as a requisite to accessing adult content on the Internet was the Communications Decency Act (CDA), a part of the largest reform of communications laws in history, the Telecommunications Act of 1996. The CDA was struck down a year later by the Supreme Court, before ever being allowed to go into effect. Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). With this recent opinion from the Third Circuit, it has now been over seven years (beginning Feb. 8, 1996) since Congress first vowed to use credit cards to block access to adult-content Internet sites by minors. With the COPA case undoubtedly returning to the High Court, nothing is going to change any time soon. Ironically, the explosion of file-swapping is perhaps making COPA a non-issue as a practical matter.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online?s offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
