Court Enjoins Enforcement of COPA
 

Scott Delacourt *

In a decision released February 1, 1999, Judge Lowell Reed of the Federal District Court for the Eastern District of Pennsylvania issued a preliminary injunction on enforcement of the Child Online Protection Act ("COPA"). Judge Reed found a substantial likelihood that the Plaintiffs (the ACLU and a number of Internet content providers) would prevail at trial in demonstrating that COPA burdens constitutionally protected adult speech in violation of the First Amendment and that enforcement of COPA would result in irreparable injury by chilling protected speech and creating incentives for self-censorship.

By its terms, COPA subjects persons who knowingly distribute material that is harmful to minors via the World Wide Web to criminal and civil penalties, including fines of up to $50,000 per violation and as many as six months in prison. However, despite extensive fact-findings on the expense of implementing a variety of age verification mechanisms, Judge Reed's opinion focused not on the financial burden on website operators but on the burden COPA might impose on speech. He stated: "First Amendment jurisprudence indicates that the relevant inquiry is determining the burden imposed on the protected speech regulated by COPA, not the pressure placed on the pocketbooks or bottom lines of the plaintiffs."

Ultimately, COPA's potential to chill protected speech was determinative for Judge Reed, despite some displeasure with the result. Expressing sympathy for the policy goals underlying COPA, Judge Reed's opinion states: "This Court and many parents and grandparents would like to see the efforts of Congress to protect children from harmful materials on the Internet to ultimately succeed and the will of the majority of citizens in this country to be realized through the enforcement of an act of Congress." Nevertheless, in granting the preliminary injunction, the opinion concluded that permitting enforcement of COPA might result in the First Amendment being "chipped away."

In addition to preventing enforcement of COPA in the near term, Judge Reed's opinion is also an important indicator of the probable result should the COPA litigation reach a trial on the merits. Considered in this light, the following findings are significant:

  • Scope: For the purpose of the preliminary injunction decision, the court considered only the plaintiffs' argument that COPA is unconstitutional on its face for burdening protected adult speech in contravention of the First Amendment. The court did not consider plaintiffs' additional arguments that COPA violates the First Amendment as applied to minors and that the Act is unconstitutionally vague in violation of the First and Fifth Amendments. Accordingly, the court has given no indication of its opinion of the merits of those arguments.

  • Effectiveness: In analyzing whether the government could meet its burden of demonstrating that COPA is the least restrictive means of protecting children from Internet content that is harmful to minors, the court addressed the "effectiveness" question reserved by the Supreme Court in the Communications Decency Act case. In addressing this question of first impression, Judge Reed noted that minors might be able to gain access to harmful materials, even under COPA, from foreign websites, non-commercial websites, and via protocols other than http. Moreover, the court found that minors may legitimately be able to possess credit cards, indicating that credit card based age verification systems may not be effective. These findings suggest that the plaintiffs would prevail on the effectiveness question at trial.

  • Narrow Construction of COPA: In response to plaintiffs' request for a preliminary injunction, the DOJ argued that plaintiffs lacked standing because COPA applies only to commercial pornographers and the content on plaintiffs' websites is not harmful to minors. Judge Reed expressly rejected this argument noting: "There is nothing in the text of COPA . . . that limits its applicability to so-called commercial pornographers." Hence, should the government proceed to trial, it will have to demonstrate that COPA is constitutional as applied to a broader group of speakers than simply commercial pornographers.

The Department of Justice had ninety days to decide whether to appeal the preliminary injunction or to proceed to a full trial.

The Department of Justice appealed the injunction on April 1.


* Scott Delacourt is Chairman of the Internet Subcommittee of the Telecommunications and Electronic Media Practice Group of the Federalist Society and an associate in the Communications Practice at Wiley, Rein & Fielding.

   

2001 The Federalist Society