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U.S. Supreme Court Rules COPA Unconstitutional
There has been a recent ongoing dialogue between the U.S. courts and Congress over the issue of limiting children's exposure to pornography on the Internet. In 1996, Congress passed the Communications Decency Act. The U.S. Supreme Court found this legislation, which criminalized certain Internet speech, to be unconstitutional. Congress responded by creating the Child Online Protection Act ("COPA"), which responded to some of the Court's concerns. The American Civil Liberties Union quickly challenged COPA, and prevented COPA from becoming effective until its constitutionality could be fully determined.
On June 29, 2004, a 5-4 majority of the U.S. Supreme Court upheld a lower ruling that blocked COPA's enforcement until its constitutional validity is decided. The Supreme Court returned the case to a lower court to determine the validity issue.
Among other things, COPA imposes a $50,000 fine and six months in prison for those who knowingly post, for commercial purposes, Internet content that is "harmful to minors". COPA provides an affirmative defence to Internet content providers who restrict access to prohibited materials by requiring the use of a credit card or any other reasonable measures.
The Supreme Court majority found that there are likely plausible, less restrictive alternatives available, and that the government had not demonstrated that COPA restricted free speech no further than is necessary to achieve its goal.
In particular, the Supreme Court stated that certain features of blocking and filtering software probably make it a less restrictive alternative:
* filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source;
* childless adults may access speech they have a right to see without having to identify themselves or provide credit card information;
* adults with children may access the same speech by turning off filters on their computers;
* promoting the use of filters does not make any category of speech criminal, and thus diminishes any potential chilling effect;
* filters can prevent minors from seeing all pornography, not just pornography posted to the Internet from America (the Court pointed out that COPA's effectiveness might be diminished if it is upheld, as providers covered by COPA might simply move their operations offshore);
* verification systems may be subject to evasion and circumvention; and
* filters can be applied to all forms of Internet communication, not just the Web.
The Supreme Court acknowledged that filters are not a perfect solution - they may block content that is not harmful to minors, and may fail to block some content that is - but stated that the government had failed to demonstrate that filters were less effective. The Court also noted that since the initial lower court decision, Congress has created further statutes which might be less restrictive alternatives to COPA: a prohibition on misleading domain names, and legislation creating a "dot-Kids" domain which is safe for minors.
COPA's ultimate validity is yet to be decided, but this decision demonstrates that the U.S. government is facing serious challenges in its goal of implementing COPA.
For a copy of the decision, visit: