Online Anti-Porn Law Dies at Supreme Court

A federal law intended to restrict children's access to Internet pornography died quietly last month at the U.S. Supreme Court, more than 10 years after Congress overwhelmingly approved it.

The Child Online Protection Act (“COPA”) would have barred Web sites from making harmful content available to minors over the Internet. The law had been embroiled in challenges to its constitutionality since it passed in 1998 and never took effect.

The Supreme Court rejected U.S. government prosecutors' last-ditch defense of COPA without comment, meaning that the law will not be enforced.

Third Strike

COPA, enacted during the anti-Internet porn scares of the late 1990s, was the U.S. Government's second attempt at protecting children online. Its first attempt, the 1996 Communications Decency Act (“CDA”), was also struck down by the U.S. Supreme Court in Reno v American Civil Liberties Union, where the court found that the CDA's indecent and patently offensive provision abridged freedom of speech as protected by the First Amendment.

COPA did not fair much better, with the courts affirming the original District Court opinion blocking Congress from enforcing it. That court found that COPA was not the least restrictive means of accomplishing the government's objectives ' the use of filtering software could actually exceed the protection available under the law ' and violated the First Amendment rights of U.S. Web site operators. In particular, the courts found that COPA could not withstand a strict scrutiny, vagueness or overbreadth analysis and thus was unconstitutional.

Since the initial proceedings, the case has bounced around the court system without reaching a resolution. During that time, the Supreme Court handed down two preliminary rulings, once in 2002 and again in 2004.

The first time, the case was sent back to an appeals court with instructions to broaden its legal analysis beyond the law's interaction with community standards. The second time, the Supreme Court wanted a review of whether “technological developments” have affected the law's constitutionality. See, Ashcroft v. ACLU, No. 00-1293.

The Supreme Court's 2004 ruling against the Justice Department and in favor of the American Civil Liberties Union (“ACLU”) commanded a narrow 5-4 majority, with justices Stephen Breyer, William Rehnquist, Sandra Day O'Connor, and (separately) Antonin Scalia dissenting.

The majority opinion, written by Justice Anthony Kennedy, upheld a temporary injunction barring prosecutors from enforcing COPA.

During remand, senior U.S. District Judge Lowell Reed Jr. ruled in 2007 that software filters work much better than the law would. Reed also said the law failed to address threats that have emerged since it was written ' including online predators on social-networking sites ' because it targets only commercial Web publishers. (See, “Internet Porn Law Ruled Unconstitutional” in the April 2007 issue of Internet Law & Strategy, available online at www.ljnonline.com/issues/ljn_internetlaw/5_4/news/148351-1.html.) The Third Circuit Court of Appeals in Philadelphia upheld Reed's ruling, agreeing that filtering technologies and other parental control tools are a less restrictive way to protect children from inappropriate content online. See, ACLU v. Mukasey, No. 07-2539.

ACLU Claims Victory

The ACLU had led the challenge to the law on behalf of writers, artists and health educators.

“For over a decade the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional,” said Chris Hansen, the ACLU's lead counsel on the Supreme Court's decision not to hear the government's appeal. “It is not the role of the government to decide what people can see and do on the Internet. Those are personal decisions that should be made by individuals and their families.”

The Bush administration had fought hard to have the law take effect.

In 2006, the Justice Department subpoenaed internal files from dozens of Internet service providers and other technology firms, including AT&T Inc., Comcast Corp., Cox Communications Inc., EarthLink Inc., Symantec Corp. and Verizon Communications Inc. as part of its defense of the law.

As a side note, it was the Justice Department's ongoing defense of COPA in 2006 that led to its subpoena to Google asking for a “random sampling” of one million Internet addresses accessible through Google's popular search engine and a random sampling of one million search queries submitted to Google over a one-week period.

Even among anti-porn groups, support for COPA waned as the years progressed, and federal prosecutors focused on obscenity and child pornography.

Another reason for the erosion of support may be that because the law was written so long ago, it is surprisingly limited. It applies only to material delivered “by means of the World Wide Web” ' meaning that it did not cover peer-to-peer file sharing, the Usenet newsgroups that had alarmed New York's Attorney General, games like Virtual Hottie 2, videos watched via third-party iPhone applications, or streaming porn viewed through the VideoLAN Client, RealPlayer, or Windows Media Player desktop applications.

In addition to the ACLU, attorneys on the case were Katharine Marshall of Kobre and Kim LLP, and Christopher Harris and Jeroen van Kwawegen with Latham and Watkins.

A federal law intended to restrict children's access to Internet pornography died quietly last month at the U.S. Supreme Court, more than 10 years after Congress overwhelmingly approved it.

The Child Online Protection Act (“COPA”) would have barred Web sites from making harmful content available to minors over the Internet. The law had been embroiled in challenges to its constitutionality since it passed in 1998 and never took effect.

The Supreme Court rejected U.S. government prosecutors' last-ditch defense of COPA without comment, meaning that the law will not be enforced.

Third Strike

COPA, enacted during the anti-Internet porn scares of the late 1990s, was the U.S. Government's second attempt at protecting children online. Its first attempt, the 1996 Communications Decency Act (“CDA”), was also struck down by the U.S. Supreme Court in Reno v American Civil Liberties Union, where the court found that the CDA's indecent and patently offensive provision abridged freedom of speech as protected by the First Amendment.

COPA did not fair much better, with the courts affirming the original District Court opinion blocking Congress from enforcing it. That court found that COPA was not the least restrictive means of accomplishing the government's objectives ' the use of filtering software could actually exceed the protection available under the law ' and violated the First Amendment rights of U.S. Web site operators. In particular, the courts found that COPA could not withstand a strict scrutiny, vagueness or overbreadth analysis and thus was unconstitutional.

Since the initial proceedings, the case has bounced around the court system without reaching a resolution. During that time, the Supreme Court handed down two preliminary rulings, once in 2002 and again in 2004.

The first time, the case was sent back to an appeals court with instructions to broaden its legal analysis beyond the law's interaction with community standards. The second time, the Supreme Court wanted a review of whether “technological developments” have affected the law's constitutionality. See, Ashcroft v. ACLU, No. 00-1293.

The Supreme Court's 2004 ruling against the Justice Department and in favor of the American Civil Liberties Union (“ACLU”) commanded a narrow 5-4 majority, with justices Stephen Breyer, William Rehnquist, Sandra Day O'Connor, and (separately) Antonin Scalia dissenting.

The majority opinion, written by Justice Anthony Kennedy, upheld a temporary injunction barring prosecutors from enforcing COPA.

During remand, senior U.S. District Judge Lowell Reed Jr. ruled in 2007 that software filters work much better than the law would. Reed also said the law failed to address threats that have emerged since it was written ' including online predators on social-networking sites ' because it targets only commercial Web publishers. (See, “Internet Porn Law Ruled Unconstitutional” in the April 2007 issue of Internet Law & Strategy, available online at www.ljnonline.com/issues/ljn_internetlaw/5_4/news/148351-1.html.) The Third Circuit Court of Appeals in Philadelphia upheld Reed's ruling, agreeing that filtering technologies and other parental control tools are a less restrictive way to protect children from inappropriate content online. See, ACLU v. Mukasey, No. 07-2539.

ACLU Claims Victory

The ACLU had led the challenge to the law on behalf of writers, artists and health educators.

“For over a decade the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional,” said Chris Hansen, the ACLU's lead counsel on the Supreme Court's decision not to hear the government's appeal. “It is not the role of the government to decide what people can see and do on the Internet. Those are personal decisions that should be made by individuals and their families.”

The Bush administration had fought hard to have the law take effect.

In 2006, the Justice Department subpoenaed internal files from dozens of Internet service providers and other technology firms, including AT&T Inc., Comcast Corp., Cox Communications Inc., EarthLink Inc., Symantec Corp. and Verizon Communications Inc. as part of its defense of the law.

As a side note, it was the Justice Department's ongoing defense of COPA in 2006 that led to its subpoena to Google asking for a “random sampling” of one million Internet addresses accessible through Google's popular search engine and a random sampling of one million search queries submitted to Google over a one-week period.

Even among anti-porn groups, support for COPA waned as the years progressed, and federal prosecutors focused on obscenity and child pornography.

Another reason for the erosion of support may be that because the law was written so long ago, it is surprisingly limited. It applies only to material delivered “by means of the World Wide Web” ' meaning that it did not cover peer-to-peer file sharing, the Usenet newsgroups that had alarmed New York's Attorney General, games like Virtual Hottie 2, videos watched via third-party iPhone applications, or streaming porn viewed through the VideoLAN Client, RealPlayer, or Windows Media Player desktop applications.

In addition to the ACLU, attorneys on the case were Katharine Marshall of Kobre and Kim LLP, and Christopher Harris and Jeroen van Kwawegen with Latham and Watkins.