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Supreme Court will rehear case on Child Online Protection Act

Justices to consider anti-pornography law's First Amendment implications

© 2003 Student Press Law Center

October 16, 2003

WASHINGTON, D.C. — For the second time in two years, the U.S. Supreme Court agreed Tuesday to review a law that punishes commercial Web site operators who make sexual material that is deemed “harmful” available online to minors younger than 17.

The case, Ashcroft v. ACLU II, questions whether the 1998 Child Online Protection Act restricts adults from viewing or purchasing constitutionally protected sexual material online. In addition, the court will review if it is unconstitutional for COPA to require adults to enter a personal identification code to access sexual content online.

COPA calls for first-time offenders to face up to six months in jail and $50,000 in fines. Repeat offenders could face additional fines. However, COPA has never been enforced because of pending legal actions.

The American Civil Liberties Union filed its lawsuit on behalf of online publishers and artists who contend that COPA unconstitutionally restricts the speech of adults who want to browse or purchase items online.

The U.S. Court of Appeals for the Third Circuit ruled twice that the law violates the First Amendment. In the first ruling in June 2000, the Philadelphia-based Third Circuit found the law was unconstitutional because it allowed online content to be judged by “contemporary community standards.” The court said a Web site publisher cannot geographically control where the information is accessed and, therefore, the most conservative standard would apply nationwide.

In March, the Third Circuit ruled that COPA was “constitutionally infirm” because it would require Web publishers to self-censor and exclude protected speech for adults in order to avoid prosecution.

The Third Circuit’s ruling did not directly determine whether minors have complete First Amendment protection. However, the court did argue that the law was “significantly over-inclusive” citing that sex education material that could be “patently offensive” to children between the ages of 10 and 13 may have “serious value” for 16-year-olds. It is unclear whether the Supreme Court will rule on the case's implications for minors' First Amendment rights.

The Justice Department appealed the latter ruling to the Supreme Court in August. In the appeal, Solicitor General Theodore Olson argued that children are “unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web.”

Olson said the law targets Internet pornographers who use sexually explicit “teasers” to attract customers. The teasers appear when users, both adults and children, are not searching for pornographic material. Usually, the teasers link to the pornographic site.

The ACLU argues that COPA could violate the rights of people using the Internet for sexual education and health-related purposes. In addition, the ACLU argues that requiring adult identification before entering certain Web sites could have a chilling effect on speech because people could be unwilling to provide that information.

The first time the Supreme Court reviewed COPA in Ashcroft v. ACLU in May 2002, the justices found that using “community standards” did not mean the law was unconstitutional. The case was sent back to the lower court so that the law’s other First Amendment implications could be reviewed.

COPA itself is the result of the 1997 Supreme Court case Reno v. ACLU in which the court unanimously struck down the 1996 Communications Decency Act, which prohibited people from knowingly making “patently offensive material” accessible to minors.

The Supreme Court will hear the case in early 2004 and a decision on the law could be made by the end of June.