COPA Struck Down Again
The U.S. District Court for the Eastern District of Pennsylvania, in a decision released last week, permanently enjoined on First Amendment grounds enforcement of the Child Online Protection Act ("COPA"). That Act sought to require website operators to restrict access to portions of their websites where there is material that would be "harmful to minors." The decision is the latest development in litigation that is nearly a decade long over COPA - a law that has never taken effect but rather has been preliminarily enjoined virtually since its enactment - which has been part of legal challenges to Congress' efforts to regulate online sexually oriented content. This litigation has already twice been to the Supreme Court. The most recent opinion makes it likely the issue will go to the Supreme Court a third time (following an intermediate appeal to the Third Circuit). If the law ever were to survive review, a broad range of websites, including not only those involving sexually oriented adult content, but also potentially many other sites including those covering news events or sex education, would have to change how they do business online.
At the center of the challenged law is COPA's "harmful to minors" standard, the application of which to Internet speech was struck down by the Court. COPA makes it a crime for commercial websites to make material that is "harmful to minors" publicly available, and it exposes alleged violators to up to $50,000 in fines and six months' imprisonment. As a practical matter, COPA would require website operators that offer content that might fall within the "harmful to minors" standard, which is an adapted version of the legal test for whether material is unlawfully obscene, to restrict access by requiring use of a credit card or similar account mechanism, a digital certificate that verifies the age of website visitors, or some other technologically reasonable measure that can restrict website access based on age. Parties challenging and/or opposed to the law say the harmful-to-minors standard is vague and sweeps too broadly, and that statute is an overly restrictive approach to dealing with minors' potential access to online sexually oriented content, especially given the less restrictive alternative of filtering software that can block such access. The Court found COPA was invalid on several legal grounds. These include that it is not narrowly tailored and the government failed to satisfy the legal requirement of showing the content-based restriction is the least restrictive means of serving its asserted interest in protecting minors, and that COPA is vague and overbroad.
Regarding the finer points of the court's legal analysis, with respect to narrow tailoring, the court found COPA underinclusive in substantial part because it has no extra-territorial application and accordingly does not apply to a large amount of material originating overseas that is unsuitable for children. Even if COPA reached such speakers, enforcement against them would be burdensome and impractical. The court further found that the defenses set out by COPA to avoid liability - which include requiring a credit or debit card/account, adult access code or PIN, or a digital certificate or other reasonable measure, to restrict access by minors - do not assist in narrow tailoring because they are "effectively unavailable." The court noted that credit card and similar account/identification numbers "do not in fact verify age," nor do data verification services. In addition, the court held that since some adults do not have credit cards and some would be unwilling to provide account numbers and/or PINs online, requiring credit card access would unduly burden protected speech. The court also held that these defenses impermissibly burden website operators with demonstrating that their speech is lawful for reasons including because requiring use of credit cards or similar devices for even free content places substantial economic burdens on protected speech.
With respect to whether COPA represents the least restrictive means of restricting online speech that is harmful to minors, the court held that the government "failed to successfully defend against" challenges that filtering software and government promotion thereof are less restrictive alternatives. The court noted that unlike enforcement under COPA, there are no speech-chilling fines or prison sentences associated with filters, and filters are customizable and may be set for different ages and/or categories of speech, and may be disabled altogether for adults. The court noted that the government may promote and support the use of filters by, for example, providing further education and training programs, giving incentives or mandates to ISPs to provide filters, directing developers of computer operating systems to provide filters and parental controls, and/or subsidizing filters for those who cannot afford them.
The government also failed to show that the above alternatives are not at least as effective as COPA in protecting minors from harmful material on the web, especially considering the "first hurdle" that there was no showing how effective COPA will be. Conversely, the evidence showed COPA will not reach a substantial amount of foreign source material, and that its affirmative defenses, including age verification are not effective. The court also held COPA would be ineffective given the "recent sparse enforcement of obscenity laws" and DOJ's apparent likelihood of not dedicating significant resources to enforcing COPA given its concern that it "could require an undesirable diversion of critical investigative and prosecutorial resources that [DOJ] currently invests in prosecuting large-scale and multi-district distributors of obscene materials." Given these shortcomings, the court stated, "although filters are prone to some over and under blocking . . . they are at least as effective, and in fact, are more effective than COPA in furthering Congress' stated goal" because they can block foreign material, parents can customize them, and they are fairly easy to install and use, and studies show they are effective at blocking potentially harmful sexually explicit material.
The court went on to hold COPA is vague in several respects. For example, the difference in scienter standards (between the "knowing" and "with knowledge" standard governing the posting of material potentially falling within COPA, and the "intentional" standard elsewhere in the statute) creates uncertainty in when COPA will apply. This chilling effect, the court found, is exacerbated by the fact that violations of both of the standards could result in criminal penalties. The court also found a chilling effect given uncertainty resulting from the vagueness of COPA's "communication for commercial purposes" triggering language. The court further found fatal vagueness problems in the requirement that materials be obscene as to minors, when the age of the minor could affect that analysis but could not be judged by the speaker in an online environment. Similarly, the online context also created vagueness problems with respect to the requirement that work be considered "as a whole" in determining if it is harmful to minors, given the manner in which web pages and sites are hyperlinked to other pages and sites, and "even for . . . online magazines, without considering the hyperlinks to offsite materials" it is too difficult to discern what constitutes the "whole" work. Accordingly, the court held "COPA invokes some undefined portion of the vast expanse of the Web to provide context for material allegedly violating the statute" such that a website "cannot determine what could be considered context by a fact finder, prosecutor, or court."
Finally, the court identified overbreadth problems that similarly doomed COPA. It found a chilling effect on speech "since the vagueness of 'communication for commercial purposes' and 'engaged in business' would allow prosecutors to use COPA against not only Web publishers with commercial Web sites who seek profit as their primary objective but also those Web publishers who receive revenue through advertising or indirectly in some other manner, the array of Web sites to which COPA could be applied is quite extensive." In addition, because material that might have serious literary value for older minors could be considered to appeal to the prurient interest of and/or be patently offensive and without serious value to younger minors, websites do not have "fair notice regarding what they can place on the Web that will not be considered harmful" to those under 17 years old. The court declined to reach "the thorny community standards" question, i.e., what community's standard should govern a global medium like the Internet, given the various other grounds on which the court invalidated COPA under the First Amendment.