Closing the Book on COPA?

by on January 21, 2009 · 23 comments

gavelIt appears that the long legal saga of the Child Online Protection Act of 1998 (COPA) has finally come to a close. This morning, according to AP, the U.S. Supreme Court rejected the government’s latest request to revive the law, which was stuck down as an unconstitutional violation of the First Amendment by lower courts and never went into effect.

COPA was an effort by Congress to modify the Communications Decency Act of 1996 (CDA) in response to the Supreme Court’s decision in Reno v. ACLU finding that the CDA was unconstitutionally over-broad. COPA sought to narrow the scope of regulation and protect minors from sexual material on the Internet by making it a crime for someone to “knowingly” place materials online that were “harmful to minors.” The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict[ ] access by minors to material that is harmful to minors” using credit cards or age verification schemes. Although narrower than the CDA, COPA was immediately challenged and also blocked by lower courts because it was still too sweeping in effect. Moreover, the courts found there were other “less restrictive means” that parents could use to deal with objectionable content — such as Internet filters.

Following the initial challenge, COPA then became the subject of an epic, decade-long legal battle that finally concluded today when the U.S. Supreme Court refused to revisit the law. COPA had already been reviewed by the Supreme Court twice before — in 2002 and 2004.  Thus, a third visit to the Supreme Court by COPA would have been something of a historical development in the world of First Amendment jurisprudence. But with the Supreme Court’s rejection of the government’s appeal today, lower court rulings stand and COPA will remain unconstitutional and unenforceable.

The key recent legal battle occurred in the Third Circuit Court of Appeals, which upheld a lower court ruling striking down COPA. The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here. Also make sure to check out this summary of COPA’s legal journey that Alex Harris penned last November.

While COPA is now dead and buried, it would be foolish to think this is the end of efforts to legislate on this front. Although it remains unclear what the legislative response will look like during a time of Democratic rule, I am certain that legislation will be floated in short order (i.e., “Son of COPA”) to try to get around the constitutional issues and regulate objectionable online content. If legislators were smart, they’d avoid legally risky solutions like more centralized filtering mandates or age verification requirements. They’d be on safer ground to consider going the subsidy route and finding a way to get parental control tools in the hands of more families and institutions. I’m not saying that I favor such subsidies, merely that such an approach would almostly certainly pass legal muster and probably wouldn’t even be challenged in court. They might also consider more public education / PSA-driven approached to online safety. Those approaches may end up finding more support in a Democratic Congress and administration anyway.

[More coverage at NYT, Reuters, CNet and Ars.]

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