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.
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