Third Circuit Affirms Injunction of Enforcement on COPA

by Scott Delacourt, Wiley Rein & Fielding

On June 22, 2000, the United States Court of Appeals for the Third Circuit released the first appellate decision addressing the constitutionality of the Child Online Protection Act ("COPA"). The decision affirmed the District Court’s preliminary injunction on enforcement of the Act, which criminalizes commercial speech on the Web that is "harmful to minors." The Third Circuit panel unanimously concluded that the Plaintiffs (the ACLU and a number of Internet content providers) were likely to succeed at trial in demonstrating that COPA impermissibly burdens constitutionally protected adult speech in violation of the First Amendment.

The panel focused in on the unworkability of the "harmful to minors" standard, as applied to the Web. COPA defines "harmful to minors" in terms of "contemporary community standards." But, as the Court noted, "geography . . . is a virtually meaningless construct on the Internet." Web publishers cannot limit access to their content to particular communities. Accordingly, the Court found that "COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state’s community standards in order to avoid criminal liability." That approach, the panel held, impermissibly restricts constitutionally protected speech.

Importantly, the panel also categorically rejected application of the "contemporary community standards" test to the Web. "Our holding in no way ignores or questions the general applicability of the holding in Miller [v. California] with respect to ‘contemporary community standards,’" the Court stated. However, "Miller . . . has no applicability to the Internet and the Web, where Web publishers are currently without the ability to control the geographic scope of the recipients of their communications." At least with respect to the Third Circuit, that conclusion leaves open the question of how obscentity will be defined on the Internet. It also means that legislatures cannot rely on the "contemporary community standards" formulation when addressing obscene content.

The panel’s decision leaves the Department of Justice – the appellant in the case – with several options. Further, en banc review is available before all of the judges on the Third Circuit, or the government may appeal to the Supreme Court, which is not required to hear the case. Alternatively, the DOJ may seek a full trial on the matter at District Court level, or abandon the appeal entirely. Given the District Court’s prior finding that Plaintiff’s were likely to prevail in demonstrating COPA’s unconstitutionality, the government would face an uphill battle should it elect to go to trial.


2003 The Federalist Society