On January 21, 2009, the U.S. Supreme Court declined to review the Third Circuit’s July 2008 affirmation of a 2007 district court ruling that the Child Online Protection Act (“COPA” or “Act”), 47 U.S.C. § 231, is unconstitutional. The Supreme Court ruling sustains a finding that the Act violates the First and Fifth Amendments because it is impermissibly overbroad and vague. The District Court (or the “Court”) held that COPA is an unconstitutional restriction of free speech because it is not the least restrictive alternative for protecting minors from harmful information on the Internet. Instead, the court found that content filtering software is less restrictive than COPA and is at least as effective in protecting minors.

As we first reported in the April issue of The Download:

COPA is the successor to the Communications Decency Act of 1996, which the U.S. Supreme Court found unconstitutional. With COPA, Congress intended to solve the constitutional defects in the earlier statute. The court, however, issued a permanent injunction against enforcing COPA.

Under COPA, it would be unlawful to knowingly make any communication over the Internet for a commercial purpose that is available to a minor and includes material that is harmful to minors. COPA considers a person to be communicating for commercial purposes only if the person is in the business of making such communications. While this is a broad definition, COPA would have exempted Internet service providers, telecommunications carriers, and providers of “Internet information location tools” from its obligations, and provided an affirmative defense to those who restrict minors’ access by requiring use of an individualized access code (e.g., credit card, debit card, or adult access code), an age verification tool, or by any other reasonable measure that is feasible under available technology.

The court held that the statute failed to meet the strict constitutional standards for laws that restrict speech based on content. The court held that COPA is overinclusive, as the terms “commercial purposes” and “engaged in the business” apply to a broad range of Internet speech, covering far more than the commercial pornographers that the government said it intended to cover. The court also found COPA to be overinclusive because it applies to speech that is harmful to all minors—from newborns to age 16—and not just speech that is harmful to older minors. The court also held that COPA is underinclusive. With much of the sexually explicit material on the Internet (perhaps a majority) coming from outside the United States, the court found that COPA’s inability to reach this content significantly reduces its effectiveness.

The court held that the affirmative defenses provided by COPA were effectively unavailable because payment cards and digital verification services are not effective in verifying age and, with their deterrent effects on speech, these methods raise their own First Amendment concerns. In addition, the court examined various alternative means of protecting children from harmful material on the Internet and cited significant improvements in content filtering technology, concluding that easy-to-install software is readily available for parents to effectively insulate children from harmful material.