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 Courts 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 states community
standards in order to avoid criminal liability." That approach,
the panel held, impermissibly restricts constitutionally protected
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 panels 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 Courts
prior finding that Plaintiffs were likely to prevail in
demonstrating COPAs unconstitutionality, the government
would face an uphill battle should it elect to go to trial.