Reporting from the front lines: the COPA oral argument
June 10, 2008
Filed under Free Expression
In Philadelphia today I attended the oral argument in the seemingly-never-ending case in which the "Child Online Protection Act" (COPA) has repeatedly been found to be unconstitutional. Chris Hansen, lead counsel in the case for the ACLU, presented an superb argument to the U.S. Court of Appeals for the Third Circuit (as detailed more fully below). Although one can never predict the outcome of any court case, the questions posed by the three judges make clear that they have serious doubts about the validity of the law. The background on this case goes back ten or even twelve years. In 1996, both CDT and the ACLU led legal challenges to the "Communications Decency Act" (CDA); I was privileged to be one of the lead counsels in the CDT-led half of the case. We were successful, and in 1997 the U.S. Supreme Court unanimously decided that the CDA was unconstitutional, in the landmark Reno v. ACLU decision. A year later - in 1998 - Congress made minor changes to the overturned CDA statute, and passed COPA. Chris Hansen and the ACLU returned to court, and immediately got a preliminary injunction blocking COPA. Over the past ten years, the case has twice been up to the Supreme Court, which upheld the preliminary injunction and sent the case back the district court for a full trial. Judge Lowell Reed of the Eastern District of Pennsylvania conducted that trial in 2006, and issued in March 2007 a very thorough, careful opinion finding that COPA is unconstitutional. The Department of Justice (DOJ) appealed the case, and the appeals court heard argument in the appeal today. The DOJ attorney, Charles Scarborough, argued first and faced a very skeptical court. The biggest hurdle for the DOJ is Judge Reed's excellent trial court decision. Court of Appeals Judge Thomas Ambro today said that he "cannot conceive of any judge being more comprehensive" than Judge Reed had been. Judge Ambro made clear that the prior Supreme Court rulings in the case, when combined with the careful trial court decision, made DOJ's appeal a very hard one to carry - the judge observed to Scarborough: "You are marching up San Juan Hill." The other two judges were harder to read, but none of the three hinted that they were leaning in favor of the government. Throughout the argument, DOJ returned to two key phrases: first, although they admitted that filtering software is far more effective than COPA would be, they repeatedly asserted that 50% of parents do not use filters. The district court had held that filtering would be 95% effective, while because more than 50% of "adult" content is overseas (and thus outside of the reach of COPA), COPA would be far, far less effective. DOJ repeatedly complained, however, that 50% of families do not use filters. When both the court and the ACLU pushed back to say that some families choose to not use filtering, DOJ had to deny that the government was trying to substitute itself for parental decision making. But that frankly is exactly what it sounded like during the argument - DOJ was essentially arguing that the government knows better than parents, and so it - rather than parents - should decide what kids can see online. The second theme repeated during DOJ's arguments was the idea that Congress could use a "belt and suspenders" approach to simultaneously enforce COPA and encourage filtering. DOJ was arguing that while filtering might be a very effective way to protect kids, Congress could still pile COPA on top of filtering. As Judge Ambro noted, however, the Constitution requires that Congress adopt the "least restrictive" means to address a governmental interest in the area of content censorship, and COPA is clearly far more restrictive, and far less effective, than filtering. The ACLU was second up to argue, and Chris Hansen did an excellent job. Chris had been the ACLU's lead counsel in the CDA case back in 1996, and a leader on the COPA challenge since it was brought in 1998 - so he is very familiar with the issues at hand. He started his argument by taking the judges back to the core legal principles: that when Congress tries to use a criminal law to censor speech based on its content, the law is presumed to be unconstitutional unless and until the government can prove that it is the "least restrictive" and most effective way to achieve a governmental objective. And as Chris made clear, the careful findings of Judge Reed in the lower court demonstrate that the government has not carried its burden. Chris also hammered home the fact that, contrary to DOJ's assertion, the COPA law is not at all restricted to just apply to "commercial pornographers" (whatever that term means) - the law clearly would criminalize a broad range of completely legal and valuable online content, including safe sex information. In addition, Chris had the best humorous lines of the afternoon - playing off of DOJ's repeated assertions that Congress could use a "belt and suspenders" approach. He argued to the court that "if the belt works at least as well as the suspenders, then the First Amendment prohibits the government from sending you to jail for not wearing suspenders." He later noted that with filtering being at least 95% effective (compared to COPA at less than 50% effectiveness), then filtering was probably the "best belt ever built." The overall argument went so well - and Chris had sufficiently addressed the judges' questions - that he was able to end his argument early, and sit down with more than ten minutes of time remaining. One final intriguing note is an argument that was not made by the government in its oral presentation. Back in September 2007, DOJ had startled many advocates and experts in this area by arguing for the first time that the U.S. COPA law would in fact apply to Web sites located overseas. DOJ was trying to rebut the lower court finding that COPA would not be effective against overseas content. In its initial brief to the court of appeals, DOJ deviated from its prior positions and began to assert that U.S. law could be used to censor content published in other countries. This assertion raised great concern among free speech and human rights advocates, who have spent years resisting the efforts of governments like China to censor content that is located in the U.S. CDT organized a "friend of the court" brief for about 20 public interest and industry groups, arguing among other points that COPA could not be applied outside of the U.S. and to do so would harm free speech globally. Noted First Amendment attorney Bob Corn-Revere made similar arguments in a strong brief filed on behalf of human rights groups. Both briefs are available here. DOJ in its argument today appeared to back away from its assertion that COPA can reach overseas. All in all, it was a good day for free speech on the Internet. I am optimistic that the appeals court will affirm the injunction against COPA. But, no matter what happens, this case is almost certainly headed back to the Supreme Court for a final round of argument, probably sometime in 2009 or 2010. Once the dust settles, maybe, just maybe, Congress will figure out that trying to censor lawful content on the Internet is a wasteful and ineffective enterprise (but I am not holding my breath that folks on Capitol Hill will learn that lesson).