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American Civil Liberties Union, et al. v. Janet Reno

This case addresses the constitutionality of the Child Online Protection Act ("COPA"), which will be codified as 47 U.S.C. Section 231. The COPA represents Congress' second attempt to regulate the content minors can access on the Internet. Congress' first attempt was the Communications Decency Act of 1996, which sought to regulate the access of minors to "indecent" and "patently offensive" speech on the Internet. These aspects of the CDA were declared unconstitutional in ACLU v. Reno, 521 U.S. 844 (1997).

The COPA is more narrowly drawn than its predecessor. The COPA imposes criminal penalties and fines on an individual who "knowingly ... by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors ...". A person makes a communication for commercial purposes within the meaning of the statute if that person devotes time to making such communications as a regular course of such person's trade or business with the objective of earning a profit as a result of such activities. It is not necessary for such person to actually make a profit from such activities, nor must this activity be the person's sole or principal business.

Congress defined material that is "harmful to minors" as:

any communication, picture, image, graphic image file, article, recording, writing or other matter of any kind that is obscene or that -

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Individuals who fall within the ambit of the statute are provided an affirmative defense to prosecution if they undertake specified steps to restrict the access of minors to "harmful" material. These steps include requiring users to use a credit card, debit account, adult access code or adult personal identification number to access the material that is "harmful to minors." Congress believed that these requirements would restrict the ability of minors to access "harmful" materials.

Plaintiffs "represent a broad range of individuals, entities and organization ... who are speakers, content providers and ordinary users on the Web. Some of the plaintiffs post, read and respond to content including, inter alia, resources on obstetrics, gynecology, and sexual health, visual art and poetry, resources designed for gays and lesbians, information about book and stock images offered for sale, and online magazines." Some of the plaintiffs operate web sites which contain chat rooms that users can access to discuss topics related to the theme of the web site in question. One of the plaintiffs' web sites is titled the "Sexual Health Network," and provides information about sexuality geared toward individuals with disabilities. Another of the plaintiffs' sites, titled "PlanetOut," seeks to develop an online community for gay, lesbian, bisexual and transgendered people. Some of PlanetOut's content is of a sexual nature, including an internet radio show hosted by "Dr. Ruthless" regarding anal sex and masturbation. A third site is operated by CNET, which provides news about a variety of topics. Various news stories published by CNET contain links to web sites related to the story. Some of these sites, in turn, such as Playboy's web site, contain material arguably within the ambit of the COPA.

Arguing that the COPA violates the First Amendment, the plaintiffs sought a preliminary injunction enjoining its enforcement. Defendant responded with a motion to dismiss, arguing that plaintiffs lacked standing to bring the suit because they would not be prosecuted under the COPA, which instead was aimed at the "commercial pornographer."

Congress had enacted the COPA in an effort to prevent minors from accessing harmful material on the Web. While acknowledging that this was a laudatory goal, the court nonetheless held that the COPA ran afoul of the First Amendment, and enjoined its enforcement. The court further held that plaintiffs had standing to challenge the statute's constitutionality, and accordingly denied defendant's motion to dismiss.

Governmental restrictions on speech are subject to different standards of review under the First Amendment depending on the nature of the restriction in question. Because the COPA is a content-based regulation of speech protected by the First Amendment, the court determined it would be subject to "strict scrutiny." This meant that the statute could be found to be constitutional only if it chose the least restrictive means available to promote a compelling governmental interest.

The court concluded that Congress was attempting to promote the compelling state interest of protecting minors from accessing harmful material. The court also determined, however, that based on the evidence then before it, it did not believe that defendant could meet her burden of establishing that Congress had selected the least restrictive means available to achieve this goal.

The court concluded that the COPA imposed a burden on protected speech. Plainly, plaintiffs had a First Amendment right to show adults some of the materials the statute did not want minors to be able to access. To be permitted to show these materials to adults, however, the statute obligated plaintiffs to put up one of a series of designated screens to prevent their access by minors. The court found that these screens, whether in the form of credit card verification or adult access code systems such as "Adult Check," "may deter users from accessing such materials and that the loss of users of such material may affect the speakers' economic ability to provide such information." This in turn may result in unwanted self-censorship, as the speakers choose to jettison portions of their sites so as to maintain traffic flows. Alternatively, installation of these screens posed an economic burden some of the plaintiffs may not be able to meet.

The court determined that Congress had available to it other means which could further its goal of preventing minors from accessing harmful materials while at the same time placing less of a burden on speech. The court pointed to commercially available blocking software as a potentially less restrictive means. Such software could either be installed in the home by concerned parents, or made available for their use by ISPs or other commercial access providers.

Moreover, the court pointed to several "holes" in COPA's statutory scheme. First, the COPA would not prevent minors from accessing harmful materials on sites emanating from foreign countries, or sites that were not commercial in nature. Second, the court pointed to the fact that minors can validly possess a credit card (given by their parents) which could then be used to avoid any screen used to block their access to harmful materials. Because the court determined that "it is not apparent ... that the defendant can meet its burden to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors to this material" the court determined that the COPA was unconstitutional and enjoined its enforcement.

In reaching this conclusion, the court was heavily influenced by the Third Circuit Court of Appeals decision in Fabulous Associates v. Pennsylvania Public Utility Commission, 896 F.2d 780 (3rd. Cir. 1990). There, the court invalidated an amendment to the Pennsylvania Public Utility Act which required adults who wished to listen to sexually explicit recorded telephone messages to apply for an access code to receive such messages because of the potentially chilling effect this requirement would have on potential users of this "service." The Third Circuit concluded that blocking particular phones from accessing the offending telephone numbers would achieve the state's purpose in a less restrictive manner.