The Court Challenge to the Child Online Protection Act
COPA was signed into law on October 21, 1998. The next day the American Civil Liberties Union, EPIC, and EFF filed suit alleging that COPA violated the First and Fifth amendments to the Constitution and seeking injunctive relief from its enforcement. The suit argued that less restrictive alternatives do a far better job of protecting children in a global medium than any US law could.
The following are the key documents and events in the litigation:
- In January 1999, CDT joined a broad group of publishers, journalists, and the technology industry in filing an amicus brief opposing COPA. Members of Congress supporting the COPA bill also filed an amicus brief with the district court.
- On February 1, 1999, the district court issued a preliminary injunction against enforcement of COPA until a final decision was made about COPA's constitutionality. The court found that plaintiffs were likely to succeed on their claim that COPA violates the First Amendment for two reasons: first, because it "imposes a burden speech that is protected for adults" and second, because the defendant could not prove that COPA is the "least restrictive means available to achieve the goal of restricting the access of minors to harmful to minors material.
- The Department of Justice appealed the Preliminary Injunction to the United States Court of Appeals for the Third Circuit. CDT was part of a broad group, representing publishers, Internet Service Providers, journalists, and the technology industry, that signed an amicus brief in support of the ACLU's challenge. In addition, the Internet Education Foundation and U.S. Chamber of Commerce filed a second amicus brief opposing the COPA law.
- On June 22, 2000, the Third Circuit Court of Appeals unanimously upheld the District Court's injunction against COPA, citing serious constitutional flaws. The appeals court decision did not address the same constitutional problems that the lower court identified, but instead turned on an additional concern about the constitutionality of the "community standards" approach used by the COPA law. Following the Third Circuit decision, the Department of Justice asked the U.S. Supreme Court to review that decision.
- On May 21, 2001, the Supreme Court announced that it would review the Third Circuit's decision to block enforcement of COPA. CDT again joined a broad coalition of the content industry and free speech advocates in support of the ACLU's challenge to COPA. In addition, the U.S. Chamber of Commerce lead a coalition of Internet and mainstream business groups in an amicus brief opposing COPA.
- On May 13, 2002, the Supreme Court reversed the decision of the Third Circuit Court of Appeals, finding that the Third Circuit's conclusions about the "community standards" test were incorrect. The Supreme Court, however, left the district court's preliminary injunction against COPA in place, and instructed the Third Circuit to look at the appeal again and consider the constitutional problems with COPA that the District Court had found.
- In July and early August, 2002, the Department of Justice and amicus in support of the government filed their briefs "on remand" in the Third Circuit.
- In August, 2002, the ACLU filed their response to the government's briefs, and CDT led a broad group representing the technology industry, content publishers, journalists, and public interest groups in an amicus brief in support of the ACLU.
- On March 6, 2003, the Third Circuit Court of Appeals unanimously upheld - for a second time - the injunction against the Child Online Protection Act (COPA), citing numerous constitutional flaws. In a detailed decision, the appeals court determined that COPA would force Web publishers to block a wide range of legal material, and was not the least restrictive means of protecting children online.
- In January 2004, CDT joined technology companies, content providers and free speech advocates in filing at the Supreme Court a friend-of-the-court brief in the challenge COPA. The brief filed before the Supreme Court argued that mechanisms exist to protect children that are more effective and less restrictive of lawful speech than the provisions of COPA.
- Following the March 2004 oral argument of the COPA case before the Supreme Court, CDT Staff Counsel John Morris published, in The Legal Times, a commentary on the government's arguments in the case.
- On June 29, 2004, the Supreme Court upheld a lower court decision enjoining an Internet pornography law because it would overly restrict adults from accessing Internet sites they have a legal right to view. The 5-member majority decision, written by Justice Kennedy, sent the case back down to the lower court for a trial to evaluate whether technology has changed in the past five years. CDT filed an amicus brief in support of the challenge to the Child Online Protection Act (COPA).
Other Background Materials
- Policy Post 8.14 - Education and Enforcement Are the Best Paths to Online Safety, June 11, 2002
- Policy Post 8.11 - Supreme Court Keeps Injunction Against COPA Net Content Controls, May 13, 2002
- Policy Post 7.15 - Supreme Court Hears Arguments in Online Speech Case, November 29, 2001
- Policy Post 6.19 - COPA COMMISSION Releases Report To Congress, October 21, 2000
- Policy Post 6.08 - COPA Commission (Commission on Online Child Protection), April 19, 2000
- Policy Post 5.23 - COPA Litigation Update, October 4, 1999
- Policy Post 5.6 - Justice Department Appeals Anti-Censorship Ruling, April 6, 1999
- Policy Post 5.3 - Philadelphia Court Blocks Enforcement of the Child Online Protection Act, February 3, 1999
- Policy Post 5.2 - Coalition of Industry and Civil Liberties Groups Challenge Internet Censorship Legislation, January 12, 1999
- CDT Action Alert September 1998
- CDT letter asking Senate Commerce Committee to oppose S.1482. March 11, 1998
- Rep. Oxley's Amendment in the Nature of a Substitute to H.R. 3783
- Text of COPA
[Child Online Protection Act] [COPA Commission] [The Court Challenge]
