The element of COPA - the "Child Online Protection Act" - that requires surfers to post a valid credit card before being granted access to adult content is officially back in the United States Supreme Court. On Oct. 14, 2003, the Court granted certiorari to consider - again - the constitutionality of the law, adding to a very long history in litigation involving Congress' second attempt to require credit-card blocking of adult sites. American Civil Liberties Union v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999), affirmed, 217 F.3d 162 (3rd Cir. 2000) vacated sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) on remand, 322 F.3d 240 (3rd Cir. 2003) certiorari granted, ___ S.Ct. ____, 2003 WL 21938765 (Oct. 14, 2003).
And the entire history is even longer than that. Congress' first attempt to require the posting of a credit card as a requisite to access to 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). It has now been almost eight years (beginning Feb. 8, 1996) since Congress first vowed to use credit cards to block access to adult Internet sites by minors.
Recall that the COPA law bars access by minors to content deemed "harmful to minors" - a surfer establishes adulthood when a valid credit card number is entered. 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 a preliminary injunction, from which the government appealed. The Court of Appeals upheld the preliminary injunction, finding that "community standards" 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 because of 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 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 of Appeals 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 of Appeals 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) under a "taken as a whole" standard (This will prove interesting in some of the adult-obscenity litigation that is currently in the courts - and in the Third Circuit, no less!).
Remarkably, the Court tackled the issue of whether what is harmful to a young minor is necessarily harmful to an older one. 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 seemingly 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 (i.e. , 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 of Appeals also found fault with the fact that COPA is limited to communications "for commercial purposes." The Supreme Court's 1997 CDA decision found that same shortcoming 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 of Appeals found fault with the credit-card-access defense - the centerpiece of COPA - because requiring payment of an access fee and disclosure of personal information placed too much burden on the audience. Moreover, it appeared to the court that blocking and filtering would work better.
Finally, although federal courts have the authority to construe federal statutes to render them constitutional, the Court of Appeals found that COPA was incapable of being saved 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 of Appeals 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 access to Websites containing materials that are "harmful to minors," assuming that a constitutionally acceptable definition of that term ever could be written.
One interesting aspect of this case is that it is not yet final in the trial court. The Supreme Court accepted review of this case only because the losing party (Ashcroft) asked, and four justices agreed. That is most unusual in a case that is not final. Rarely will the Supreme Court agree to become involved in a non-final controversy where, as in this and in most cases, the Court is free to simply decline to become involved solely because it does not want to become involved. Had the Court simply declined to hear the case without supplying a reason - which the Court does with the overwhelming majority of cases that come knocking on its door - the case would have returned to the district court for trial. And that seems to make a great deal of sense given the vast changes in the Internet over the nearly five years that have elapsed since the hearing in the trial court concluded. Obviously, the importance of the issue involved prevailed over both the evolving facts and the interim nature of the order (a preliminary injunction) involved.
The Supreme Court has said it will render a decision on COPA by the end of June.
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 at [email protected]. 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.
