Speech: COPA

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After the U.S. Supreme Court struck down the CDA’s provisions governing obscene materials, Congress passed the Children’s Online Protection Act(COPA), codified at 47 U.S.C. § 231, in an effort to satisfy the First Amendment requirements affirmed in Reno v. ACLU.

  1. Section 231 of Title 47 provides:
    Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce 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 shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

    COPA was challenged immediately in ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999). A preliminary injunction was granted in February 1999 and affirmed by the Third Circuit in ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000). On May 13, 2002, the Supreme Court vacated the Third Circuit opinion and remanded the case back to the Third Circuit for consideration of the narrow question of whether COPA’s use of community standards to identify material harmful to minors violated the First Amendment.

  2. Ashcroft v. ACLU, 533 U.S. 564 (2002). The Court held that COPA’s reliance on community standards to identify “material that is harmful to minors” does not by itself render the statute substantially overbroad for purposes of the First Amendment. Relying on the Court’s obscenity jurisprudence, the Court reasoned that “[w]hen the scope of an obscenity statute’s coverage is sufficiently narrowed by a ‘serious value' prong and a ‘prurient interest’ prong … requiring a speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment.” Id. at 580. Although the Court did not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely would not survive strict scrutiny analysis, the Court ruled that the government remains enjoined from enforcing COPA pending further action by the lower courts on those issues.
  3. ACLU v. Ashcroft, 322 F.3d 240 (2003). After the case was remanded by the Supreme Court, the Third Circuit Court of Appeals again held that the district court did not abuse its discretion in granting the preliminary injunction and that it did not err in ruling that plaintiffs had a probability of success on the merits. The court held COPA was unconstitutional because it was not narrowly tailored to serve what the court found to be a significant government interest. Indeed, COPA’s affirmative defenses, which immunize website operators who use credit card verification systems to block minors’ access to harmful materials, were themselves held to overburden speech by imposing a fee on users and causing websites to lose traffic. Id. at 258-59. The court held that COPA was unconstitutional also because it did not employ the least restrictive means of addressing the government’s interest, citing the voluntary use of filtering technology by parents as a possible alternative. The court also held that COPA was unconstitutionally overbroad because it affected material not harmful to minors. The court concluded that COPA was not narrowly tailored in its determination of harmfulness; one picture of a prepubescent female breast in a collection of photography might not be harmful to minors, unless the picture alone was considered. Id. at 266-67. In addition, the court focused on COPA’s definition of minor as “one under age seventeen,” noting that what was harmful to a very young child might not be harmful to a teenager. Id. at 246 n.7. The Third Circuit held COPA was overbroad not only due to the “community standards” language on which the court had focused its initial ruling but also as a result of these other factors. Id. at 248.
  4. Ashcroft v. ACLU, 542 U.S. 656 (2004). Suppreme Court affirmed, holding that the Third Circuit was correct to affirm the District Court’s ruling that enforcement of COPA should be enjoined because the statute likely violates the First Amendment.
  5. ACLU v. Gonzales, No. 98-559 (E.D. Pa. March 22, 2007). On remand, COPA is struck down by the district court.[1]


Chapter 2 - Content And Speech Regulation
Obscenity · Communications Decency Act - Obscene Materials · Children's Online Protection Act (COPA) · Children's Internet Protection Act (CIPA) · State Attempts At Regulation · First Amendment · Anonymity · International Content Regulation

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