Child Online Protection Act Overturned

July 23, 2008 — -- A federal appeals court struck down as unconstitutional a Clinton-era law that would have forced websites with adult material to verify visitors' ages, dealing another blow to the government in a 10-year court battle over net censorship.

The 3rd U.S. Circurt Court of Appeals upheld on Tuesday a 2007 lower-court decision that the Child Online Protection Act violated the First Amendment since it was not the most effective way to keep children from visiting adult websites.

Both courts also found that the standards for material that had to be hidden from open browsing were so loosely defined that any content not suitable for a four-year-old would have been hidden behind a age-verification firewall.

"Unlike COPA, filters permit adults to determine if and when they want to use them and do not subject speakers to criminal or civil penalties," the court wrote.

The Justice Department has been defending COPA since its passage in 1998, when the ACLU and others filed suit against the censorship law and won an immediate injunction. Since then, the court battle has made its way twice to the Supreme Court, though the government has never won any clear battles in the dispute.

COPA makes it a crime to knowingly post material that is "harmful to minors" on the web for "commercial purposes" without having some method -- such as a credit card -- to verify a visitor's age.

Critics assailed the law for infantilizing the internet and requiring website operators -- including news sites -- to live in fear of prosecution if even a small part of their website contained adult material.

COPA was intended to be a narrower version of the 1996 Communications Decency Act, which would have catastrophically extended the rules of television 'decency' to the internet had the Supreme Court not emphatically rejected it in 1997.

In its ruling, however, the appeals court did not see much of a difference between the two laws.

"It is apparent that COPA, like the Communications Decency Act before it, 'effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,' Reno, 521 U.S. at 874, 117 S.Ct. at 2346, and thus is overbroad. For this reason, COPA violates the First Amendment," the judges wrote. "These burdens would chill protected speech."

The ACLU's Chris Hansen, a First Amendment lawyer for the rights group, applauded the decision.

"For years the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional," Hansen wrote in a statement. "The government has no more right to censor the internet than it does books and magazines."

The Justice Department is not pleased with the decision and is reviewing its options, according to spokesman Charles Miller.

"We are disappointed that the Third Circuit Court of Appeals struck down a Congressional statute designed to protect our children from exposure to sexually explicit material on the internet," Miller said.

The ACLU, suing on behalf of Salon magazine sexualhealth.com and the owner of the Urban Dictionary website, successfully argued that the law criminalizes constitutionally protected speech, would drive pornography sites to non-U.S. servers, and prevent the spread of health information due to people's unwillingness to register to read sensitive information.

They also argued the law would apply to anyone who wrote about mature subjects who also happened to have Google or Yahoo ads on their personal blog.

For its part, the government says the law was intended to apply to pornographic websites, not news sites. It also argues COPA's age restrictions would work with content filters.

The government is likely to appeal Tuesday's decision for a full hearing at the appeals court or to the Supreme Court.