A.  Third Circuit Enjoins Enforcement of Child Online Protection Act

    In a decision with broad implications for the enforcement of obscenity law on the Internet, a panel of the U.S. Court of Appeals for the Third Circuit held unanimously that the Child Online Protection Act (COPA) violates the First Amendment.  The court upheld the decision of the U.S. District Court for the Eastern District of Pennsylvania, issued in February 1999, preliminarily enjoining COPA on constitutional grounds.  The Third Circuit’s decision reinforced the unbroken line of cases that have nullified federal and state Internet content restrictions.

Son of CDA

    COPA was adopted as a reaction to the U.S. Supreme Court’s 1997 decision invalidating the Communications Decency Act (CDA).  Reno v. ACLU, 521 U.S. 821 (1997).  Congress sought to avoid the same fate for COPA by designing the law to be narrower than the CDA.  Unlike the CDA, COPA does not apply to all sexually oriented information on the Internet, but prohibits making “any communication for commercial purposes” over the World Wide Web that “is available to any minor and that includes any material that is harmful to minors.”  It generally uses the three-part test for obscenity set out in Miller v. California as applied to minors, and thus covers material that “depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast.” 

    COPA established criminal sanctions of a $50,000 fine and six months imprisonment for “knowing” violations.  It imposed an additional fine of $50,000 for “intentional” violations of the law, and each day of noncompliance is considered a separate violation.  The law also established an additional civil fine of $50,000 for each “knowing” violation, and each day of noncompliance is considered a separate violation.  Like the CDA, COPA established various affirmative defenses in the event of a prosecution.  If charged with a violation, a defendant may demonstrate that it restricted minors’ access by use of a credit card, debit account, adult access code, adult personal identification number, digital certification of age, or other “reasonable” measure feasible under available technology.

    In November 1998, Judge Lowell A. Reed of the U.S. District Court for the Eastern District of Pennsylvania issued a temporary restraining order blocking enforcement of COPA.  ACLU v. Reno II, 1998 WL 813423 (E.D. Pa. 1998).  Judge Reed reaffirmed his preliminary decision in February 1999 and issued a preliminary injunction against COPA.  ACLU v. Reno II, 31 F. Supp. 2d 473 (E.D. Pa. 1999).  The court found that the plaintiffs were likely to succeed on the merits of their constitutional claim -- that the law would impose burdens on constitutionally protected speech, that it would chill online speech in general, and that the government had failed to demonstrate that COPA is the least restrictive means of serving its purpose. 

    Significantly, the court considered the burdens of COPA in light of the unique nature of Internet communication.  31 F. Supp. 2d at 495.  The opinion noted that any barrier erected by Web site operators and content providers to bar access even to some of the content on their sites to minors “will be a barrier that adults must cross as well.”  Judge Reed added that “perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”  Id. at 498.

The Decision on Appeal

    In affirming the district court, the Third Circuit did not rely on the lower court’s particularized analysis of the statute.  Instead, it focused on the futility of applying “contemporary community standards” to a global medium.  The court found that “web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users.”  Accordingly, it concluded that the First Amendment analysis was affected dramatically by “the unique factors that affect communication in the new and technology-laden medium of the web.”  ACLU v. Reno II, 217 F.3d 162, 174-75 (3d Cir. 2000).

    The court found that “the Internet ‘negates geometry’” in that it is “‘fundamentally and profoundly anti-spatial.’”  Id. at 169 (citation omitted).  Accordingly, a Web publisher “will not even know the geographic location of visitors to its site,” and application of a First Amendment standard based on community standards “essentially requires that every Web publisher subject to the statute [must] abide by the most restrictive and conservative state’s community standards in order to avoid criminal liability.”  Id. at 175.  It held that “this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of the likelihood of unconstitutionality of the entire COPA statute.”  Id. at 174.  The court based its holding entirely on the likely unconstitutionality of “community standards” in the Internet context.

    Although COPA implemented a “harmful to minors” test, the court’s conclusions fully apply to the test for obscenity.  One implication of the holding is that obscenity law cannot be enforced against Internet speech.  The court stated that Miller v. California “has no applicability to the Internet and the Web, where Web publishers are currently without the ability to control the geographic scope of the recipients of their communications.”  Id. at 180.  It further noted that “[t]he State may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations.”  Id. at 179.

    The court distinguished the application of obscenity law to other technologies, noting that publishers can choose not to mail unsolicited sexually explicit material to certain locales, and dial-a-porn operators can refuse to accept calls from particular communities.  It also distinguished a Sixth Circuit case, United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), noting that it involved transmissions from an electronic bulletin board that, unlike the Internet, allowed control over access based on geographic location.  Distinguishing Thomas, the Third Circuit concluded that “no federal court has yet ruled on whether the Web/Internet may be constitutionally regulated in light of different community standards.”  Id. at 177.  In its conclusion, however, the court expressed the “firm conviction” that developing technology will render the community standards challenge “moot,” thereby permitting regulation in the future.  The nature of the court’s imagined technological fix, however, is not clear.  Id. at 181.

    The Department of Justice is seeking Supreme Court review of the Third Circuit decision.