Saying it restricts free speech by making it too difficult for adults to access online material protected by the First Amendment - cyberporn and mainstream content alike - a three-judge panel of the Third U.S. Circuit Court of Appeals on Thursday upheld an earlier injunction blocking enforcement of the Child Online Protection Act. The act, the court said, is unconstitutional not only because it bars Website operators from publishing information deemed "inappropriate for minors" unless access to the site is limited only to adults, but also because the terms "minor" and "commercial purposes," as used in the law, are ill-defined.
The act's controversial "community standards" test proved to be a prime factor in determining its fate. "[W]hen viewed in conjunction with the other provisions of the statute - the 'material harmful to minors' provision and the 'commercial purposes' provisions, as well as the affirmative defenses - [the requirement] adds to the already wide range of speech swept in by COPA," the court wrote in its ruling.
This wasn't the first time COPA visited the Third Circuit Court. The court previously ruled COPA unconstitutional because it allowed Internet content to be judged by "contemporary community standards." That decision was appealed to the U.S. Supreme Court, which ruled the "community standards" issue wasn't the basis on which the law should be judged and sent the case back to the lower court for further review.
In its Thursday ruling, the Third Circuit Court alluded to the higher court's decision: "We originally declined to redraw COPA when we held that the 'contemporary community standards' rendered the statute overbroad; we certainly decline to perform even more radical surgery here. In order to satisfy the constitutional prerequisites consistent with our holding today, we would be required ... to redraw the text of 'commercial purposes' and redraw the meaning of 'minors' and 'what is harmful to minors,' including the reach of 'contemporary community standards.' We would also be required to redraw a new set of affirmative defenses."
The appellate court criticized COPA again for defining "minors" too broadly. As written, the court said, the law risks criminalizing "too wide a range of speech" that should be protected for adults. "The type of material that might be considered harmful to a younger minor is vastly different - and encompasses a much greater universe of speech - than material that is harmful to a minor just shy of 17 years old," the court wrote. The panel also noted that, although Congress attempted to skirt free speech issues by aiming the law at "commercial" Websites, nowhere in the law was a level of profitability assigned to the term "commercial." In addition, age-screening methods like requiring users to give a credit card number in order to prove their majority amounted to unfair onus on adults who simply wanted to view medical, educational, and other sites that are protected by the First Amendment.
"They did the right thing," said Free Speech Coalition board member Scott Tucker, who also runs Topco Sales, the adult novelty manufacturer. "The law was overly broad. We're all against child porn, and the adult industry has no relation to child porn.... At the same time, we need to make sure to protect the rights of everyone."
Adult Sites Against Child Pornography executive director Joan Irvine also applauded the appellate ruling. "I believe it's parents' responsibility to monitor their children's Internet usage, not the government's," she said. "Just like [parents should] monitor their TV viewing."
Irvine also said that while it's crucial to fight child pornography and to keep children from accessing adult-oriented materials, those goals should not be accomplished by interfering with people who use materials that adults have a legal right to access - and especially not by interfering with access to ordinary news and information that might best be viewed by "mature" readers.
"I have noticed, even with ASACP, what the filtering and laws like this do to us," Irvine said. "I will actually respond to stories I see online, and send them in e-mail, and my e-mail gets rejected by some of the servers. And I think the reason it does this is because I usually am responding to articles that are discussing laws or arrests regarding child pornography. If I mention that in the text of my e-mail, or I use the name of the organization, which is important for people to know, many times the e-mail is bounced back."
COPA, signed into law in 1998 but enjoined almost immediately, is one of a number of similar Internet laws the courts have barred from enforcement. The American Civil Liberties Union began the challenge to COPA and praised the appellate panel's ruling. "It's clear that the law would make it a crime to communicate a whole range of information to adults," associate legal director Ann Beeson told reporters after the decision was handed down.
The Justice Department is mulling whether to ask the appeals court to review the case yet again, or to appeal to the U.S. Supreme Court.
