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Wednesday, July 23, 2008

AVN: Cort Cuts Down COPA

3rd Circuit Strikes Down COPA

Judge: Child Online Protection Act is unconstitutional

By: Mark Kernes

Posted: 07/22/2008

PHILADELPHIA – It's always comforting when a federal court, sitting less than a mile from the building where the Declaration of Independence was signed, once again affirms Americans' constitutional right to free speech – this time over the World Wide Web. That's exactly what a panel of the Third Circuit U.S. Court of Appeals did today in affirming the Judge Lowell A. Reed, Jr.'s opinion that the Child Online Protection Act (COPA) is "impermissibly overbroad and vague."

This represents the third time COPA has come before the Third Circuit – twice before on preliminary injunctions against the law taking effect, and now after Judge Reed found at trial that his fellow judges on the Circuit were right all along: COPA is simply bad law, and not the least restrictive means by which the government could accomplish its (alleged) goal of protecting minors from exposure to sexually explicit content.

"[T]his time the Supreme Court affirmed our decision though it remanded the case to the District Court for a trial on the merits," wrote Senior Judge Morton I. Greenberg for the three-judge panel which included Thomas L. Ambro and Michael A. Chagares. "The Court contemplated that the record would be updated on the remand to reflect the then current technological developments and to account for any changes in the legal landscape. The Court further directed that the District Court determine whether Internet content filters are more effective than enforcement of the COPA restrictions or whether other possible alternatives are less restrictive and more effective than COPA to effectuate Congress’s intention."

COPA, as AVN/Online readers will recall, was the "fix" to the 1996 Communications Decency Act, which banned all "indecent" and "obscene" speech from the Internet – and which was quickly found by the U.S. Supreme Court to be unconstitutionally vague. COPA, on the other hand, limited the banned speech to "material that is harmful to minors" posted only "for commercial purposes," and incorporated a definition of "material harmful to minors" – "minors" here meaning anyone under 17 – that has been widely copied by state legislatures attempting to craft anti-adult zoning and other censorious measures aimed at restricting adults' access to adult sexual speech:

"(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

COPA's idea of "commercial purposes" was equally unworkable:

"A person makes a communication 'for commercial purposes only if the person when making the communication 'is engaged in the business of making such communications'," Judge Greenberg reported. "A person is 'engaged in the business' when the person: 'devotes time, attention, or labor to such activities, as a regular course of such person’s trade or business, with the objective of earning a profit as a result of such activities . . . . [and] only if the person knowingly causes [or solicits] the material that is harmful to minors to be posted on the World Wide Web'."

Hence, the American Civil Liberties Union, acting for a number of actual or putatively "commercial" individuals and businesses including Salon Media Group, the Center for Democracy and Technology, and a coalition of writers, artists and health educators, sued the government to prevent their sites from being banned.

When trial on the issues was finally held in early 2007, Judge Reed concluded that "COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) COPA is not narrowly tailored to the compelling interest of Congress; (2) defendant has failed to meet his burden of showing that COPA is the least restrictive and most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad."

Judge Greenberg spends some time in his opinion discussing the "law-of-the-case" doctrine, which essentially says that once the issues in a particular case have been framed, courts at each succeeding stage of the proceedings are generally bound to consider those same issues, unless "extraordinary circumstances" are present. For the most part, such circumstances didn't occur here.

However, since the current opinion is a post-trial opinion rather than one involving a preliminary injunction, both the trial court, and therefore also the appeals court, have taken fresh looks at some issues that have been attendant to the case all along, not the least of which was whether COPA can survive the "strict scrutiny" doctrine that is applied to all cases involving content-based restrictions on speech.

Strict scrutiny requires that a law restricting expression must both serve a compelling government interest in accomplishing a particular goal, and must also be narrowly tailored so that it does not draw in speech that has little or nothing to do with that stated goal. Among the problems the Third Circuit found with COPA, both in its prior opinion and the current one, were that the statute's language, requiring that the "material harmful to minors" be "taken as a whole," would in practice "appl[y] in a literal sense to an infant, a five-year old, or a person just shy of age seventeen," causing "Web publishers [to] face great uncertainty in deciding what minor could be exposed to its publication, so that a publisher could predict, and guard against, potential liability... Under the plain language of COPA, a Web publisher will be subjected to liability if even a small part of his or her Web site displays material ‘harmful to minors."

"In its decision made after the trial on the merits now on appeal before us," Judge Greenburg wrote, "the District Court concluded that COPA is not narrowly tailored because it is both overinclusive and underinclusive ... because it 'prohibits much more speech than is necessary to further Congress’ compelling interest,' [and] because it 'applies to speech that is obscene as to all minors from newborns to age sixteen, and not just to speech that is obscene as to older minors . . . .'"

Since the Third Circuit did not deal with underinclusiveness in its prior decision, it was free to address that concept based on the findings at trial, and it noted that Judge Reed found that, "[T]here is a significant amount of sexually explicit material on the Internet which originates from outside of the United States. . . . [U]nlike Internet content filters which are able to block from view unsuitable material regardless of its origin, COPA has no extra-territorial application. As a result, . . . COPA is not applicable to a large amount of material that is unsuitable for children which originates overseas but is nevertheless available to children in the United States . . . . COPA’s lack of extraterritorial application renders it underinclusive."

This is, of course, a fact that adult Webmasters – and attorneys – have long been familiar with, but the Third Circuit concluded, despite ample evidence adduced at trial regarding COPA's lack of jurisdiction over foreign material, that "if we had to pass on the issue we might conclude that COPA is not unconstitutionally underinclusive." But nonetheless, the panel stated, "We note, however, that our possible disagreement with the District Court on this one point would not change our ultimate decision to affirm its order granting a permanent injunction, as there are numerous other grounds that require us to find that COPA is not narrowly tailored and is unconstitutional. Accordingly, we will refrain from deciding the matter."

The court also found that age verification services and obtaining credit card numbers on sites are virtually useless in preventing minors from accessing explicit material since they "can easily be circumvented by children who generally know the first and last name, street address and zip codes of their parents or another adult." For that and a few other reasons, the Third Circuit agreed that these "affirmative defense" mechanism failed to cure COPA's failure to be narrowly tailored in the amount of speech it restricts.

Finally, "In addition to failing the strict scrutiny test because it is not narrowly tailored, COPA does not employ the least restrictive alternative to advance the Government’s compelling interest in its purpose, the third prong of the three-prong strict scrutiny test," the panel concluded.

The answer? Blocking and filtering software, of course!

"The District Court discussed Internet content filters at length in its Findings of Fact," Judge Greenburg stated. "We will review these findings in detail, as the need to determine whether filters are more effective than COPA to effectuate Congress’s purpose in enacting that statute was the primary reason the Supreme Court remanded the case."

A major part of that remand was to consider the advances in technology since COPA was first considered back in 1999, and sure enough, the district court found that, "[f]iltering products have improved over time and are now more effective than ever before. This is because, as with all software, the filtering companies have addressed problems with the earlier versions of the products in an attempt to make their products better. Another reason the effectiveness of filtering products has improved is that many products now provide multiple layers of filtering. Whereas many filters once only relied on black lists or white lists, many of today’s products utilize black lists, white lists, and real-time, dynamic filtering to catch any inappropriate sites that have not previously been classified by the product."

Judge Reed also found that filtering programs are now harder for children to bypass; that filters will block foreign sexually-oriented sites that COPA can't; and also that the government had failed to show that COPA would be less restrictive than filtering because, "unlike COPA there are no fines or prison sentences associated with filters which would chill speech. Also unlike COPA, . . . filters are fully customizable and may be set for different ages and for different categories of speech or may be disabled altogether for adult use."

And besides, the Supreme Court has already given instruction on how the government could promote and support the use of filters, noting most importantly that, "The need for parental cooperation does not automatically disqualify a proposed less restrictive alternative." (Now, if only the high court would apply that same logic to zoning-mandated setbacks for adult businesses!)

The Third Circuit also perceptively noted, "the circumstance that some parents choose not to use filters does not mean that filters are not an effective alternative to COPA. Though we recognize that some of those parents may be indifferent to what their children see, others may have decided to use other methods to protect their children – such as by placing the family computer in the living room, instead of their children’s bedroom – or trust that their children will voluntarily avoid harmful material on the Internet. Studies have shown that the primary reason that parents do not use filters is that they think they are unnecessary because they trust their children and do not see a need to block content." Let's hear it for Freedom of Choice!

"Given the vast quantity of speech that COPA does not cover but that filters do cover, it is apparent that filters are more effective in advancing Congress’s interest, as it made plain it is in COPA," the panel concluded. "Moreover, filters are more flexible than COPA because parents can tailor them to their own values and needs and to the age and maturity of their children and thus use an appropriate flexible approach differing from COPA’s 'one size fits all' approach. Finally, the evidence makes clear that, although not flawless, with proper use filters are highly effective in preventing minors from accessing sexually explicit material on the Web."

Finally, the appeals court found that COPA is filled with terms that, when it comes to speech restrictions, are impermissibly vague:

"We are bound by our conclusion in ACLU II [the Third Circuit's last opinion on the preliminary injunction dispute] that COPA’s definition of 'minor' renders the statute vague," the Court said. "Furthermore we agree with the District Court’s conclusion that COPA’s use of the phrases and terms 'communication for commercial purposes,' 'as a whole,' 'intentional,' and 'knowing' renders it vague, for the reasons the District Court stated in its opinion."

And with vagueness almost invariably comes overbreadth, because if a statute isn't clear about what speech it covers, it certainly would, in practice, take in more speech that it permissibly may.

"Thus, we explained," the Court said, referring to ACLU II, "an isolated item located somewhere on a Web site that meets the ‘harmful to minors’ definition can subject the publisher of the site to liability under COPA, even though the entire Web page (or Web site) that provides the context for the item would be constitutionally protected for adults (and indeed, may be protected as to minors)."

"In sum, COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional," Judge Greenburg summarized. "We reach our result both through the application of the law-of-the-case doctrine to our determination in ACLU II and on the basis of our independent analysis of COPA and would reach the same result on either basis standing alone. For the foregoing reasons, we will affirm the District Court’s March 22, 2007 order."

It seems almost a foregone conclusion that the Justice Department's next stop will be a cert petition to the U.S. Supreme Court ... but with this excellent analysis by the Third Circuit, and with the Bush administration out the door by Jan. 20, 2009, and a likely concomitant sea change in the Justice Department's policies toward speech, it's hardly a slam dunk that that petition will be filed, or that the Supreme Court will look favorably upon it. However, only time will tell.

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