July 22, 2008, 4:04 PM — A U.S. appeals court has for the third time struck down a law intended to keep Web sites with sexually oriented themes away from children, with judges saying the law is a vague and overly broad attack on free speech.
The U.S. Court of Appeals for the 3rd Circuit, in a ruling released Tuesday, struck down the Child Online Protection Act (COPA), a law passed by Congress in 1998. COPA required that all Web sites containing "material harmful to minors," including pictures, recordings and writing, restrict access based on age.
COPA defined material harmful to minors as something the "average person, applying contemporary community standards, would find ... is designed to appeal to, or is designed to pander to, the prurient interest." People who posted adult content without blocking minors' access could face up to six months in prison under the law.
COPA appears to violate the First Amendment of the U.S. Constitution protecting free speech, and the U.S. government hasn't made its case that the law is necessary, 3rd Circuit judges wrote. "COPA criminalizes a category of speech -- 'harmful to minors' material -- that is constitutionally protected for adults," the judges wrote.
Opponents of the law, including the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation, Nerve.com, Salon.com, the Urban Dictionary and the Sexual Health Network, argued the law amounted to government censorship and was so broad that it would affect many Web sites, including those that included information on sexually transmitted diseases.
"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," Chris Hansen, senior staff attorney with the ACLU First Amendment Working Group, said in a statement. "The government has no more right to censor the Internet than it does books and magazines."
Opponents of COPA have successfully challenged it in court several times. In 2000, the 3rd Circuit upheld a lower court's injunction against the implementation of the law, and in 2002, the U.S. Supreme Court upheld the injunction but sent the law back to U.S. district court. In 2003, the 3rd Circuit ruled that the law violated the U.S. Constitution.
In 2004, the U.S. Supreme Court again looked at COPA, and it again sent the case back to district court, this time to determine whether there had been any changes in technology that affect the implementation of the law, such as whether commercial blocking software was as effective as the banned law might be.
In March 2007, a district judge once again struck down COPA, and the U.S. Department of Justice again appealed, leading to the 3rd Circuit's ruling Tuesday.
The Supreme Court in 1997 struck down a similar law, called Communications Decency Act (CDA), passed by Congress in 1996.
A DOJ spokesman said officials there are disappointed that the court again struck down a law "intended to protect our children." The DOJ is reviewing its options before deciding what to do next with COPA, he said.
The Center for Democracy and Technology, an online rights advocacy group, praised the 3rd Circuit's decision.
"Throughout the history of legal challenges to COPA, we have argued that the most effective way to protect children online, and the means least restrictive of free expression, is to give families the resources to control what their children see and do online," CDT General Counsel John Morris said in a statement. "This empowers parents, respects the First Amendment and acknowledges the diverse sensibilities of American families."