NAA Joins Amicus Brief in ACLU v. Gonzales

After the Communications Decency Act of 1996 was struck down in ACLU v. Reno, 521 U.S. 844 (1997), Congress in 1998 passed the Child Online Protection Act (COPA) to protect minors from harmful sexual material on the Internet. The Act carried severe criminal monetary sanctions and up to six months imprisonment. On behalf of a coalition of writers, artists and health educators, the American Civil Liberties Union (ACLU) challenged the law’s constitutionality.

The U.S. District Court for the Eastern District of Pennsylvania issued a temporary restraining order against the Act’s enforcement in 1998 and a preliminary injunction in 1999. When the government appealed, the U.S. Court of Appeals for the Third Circuit affirmed the injunction in 2000. The appeals court found inapplicable the community standards prong of Ginsberg v. New York, 390 U.S. 629 (1968), as modified by Miller v. California, 413 U.S. 15 (1973), in which the Court determined that First Amendment-protected material is unprotected as to a minor if, taken as a whole, it (i) predominantly appeals to minors’ prurient, shameful or morbid interest; (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and (iii) lacks serious literary, artistic, political or scientific value.

The government’s petition for rehearing in the Third Circuit was denied in 2000, but in 2002, the U.S. Supreme Court overturned the decision on Internet community standards, and remanded to the Third Circuit on whether the statute would inhibit First Amendment- protected speech for adults. In March 2003, the Third Circuit again found COPA unconstitutional, for vagueness and overbreadth. The government petitioned for rehearing en banc, which the Third Circuit refused. The Supreme Court granted certiorari again and in June 2003 upheld the preliminary injunction, and remanded to the district court to determine whether the law was the least restrictive means of protecting children from Internet pornography, or if technology such as internet filters could protect both children and adults’ First Amendment rights.

On March 22, 2007, the Eastern District of Pennsylvania again struck down the law, finding COPA impermissibly vague, overbroad and not narrowly tailored to a compelling government interest; and that the government failed to show COPA was the least restrictive and most effective means to achieve the compelling interest. The government appealed to the Third Circuit again in September 2007. On October 29, 2007, NAA joined an amicus brief before that court. The brief argued that technological tools and education offer less restrictive and more effective means to protect children from inappropriate online content; that the reach of COPA was not restricted to online pornographers; and that COPA would be ineffective in the World Wide Web because it did not apply to overseas content.

The appeal before the Third Circuit is pending.

First Published:
April 28, 2008