A federal appeals court has struck down the government's attempt to protect children from sexually explicit online material, declaring the Child Online Protection Act ("COPA") to be unconstitutional.
The decision by the U.S. Court of Appeals for the Third Circuit is the latest in a long line of rulings addressing COPA that have volleyed the issue from the District Court to the Third Circuit to the U.S. Supreme Court, and back again several times. But with each new ruling declaring COPA to be unconstitutional, the likelihood that it will become law would appear to diminish.
COPA was passed after the U.S. Supreme Court declared Congress's first attempt to protect minors from sexually explicit online material, the Communications Decency Act, unconstitutional. Passed in October 1998, COPA makes it illegal to knowingly post "material that is harmful to minors" on the Web for commercial purposes. Web publishers could assert an affirmative defense if they restricted access to content by requiring the use of a credit card or other age verification measures.
The day after COPA was passed, a number of groups, including the ACLU, filed suit to bar the enforcement of the new law. Among other claims, the plaintiffs alleged that filtering and blocking-technology was one example of a less restrictive means to shield minors from harmful material.
While the case bounced from the District Court up to the Third Circuit and to the Supreme Court on various legal issues, the Supreme Court eventually ruled that the District Court should hold a trial to determine whether Internet content filters are more effective than enforcement of COPA, and whether there are other ways to protect children that are more effective and less restrictive on free speech.
Following a bench trial, the district court determined that "COPA is not narrowly tailored to the compelling interest of Congress."
In a lengthy opinion, the Third Circuit upheld the district court, and adopted many of its own findings from previous decisions in the dispute. The appellate court found that COPA's requirements would unduly burden web publishers because the measures they have to adopt to protect themselves involve high costs.
The Third Circuit also reviewed the district court's findings regarding the use of filtering programs to screen out harmful content. "We agree with the District Court's conclusion that filters and the Government's promotion of filters are more effective than COPA," the Third Circuit stated.
View the decision here.