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ACLU v. Mukasey

(formerly Ashcroft v. ACLU
and ACLU v. Reno II)

The Legal Challenge to the Child Online Protection Act

Latest News | Procedural History| Legal Documents | Press Releases

Latest News

Supreme Court Refuses to Hear Internet Censorship Appeal. The Supreme Court denied the last appeal of the Government from an Appeals Court decision that turned down the enforcement of the Child Online Protection Act (COPA). COPA establishes criminal penalties for any online commercial distribution of material harmful to minors. The Appeals Court held COPA unconstitutional on the ground that COPA made every web communication provider abide by the most restrictive community's standards." EPIC had challenged the implementation of COPA over ten years ago and had been fighting the case along with the ACLU and the EFF. EPIC argued that COPA violated the First Amendment as well as privacy of the individual on the internet. For more information, see EPIC's page on ACLU v. Mukasey. (January 21, 2009).

In ACLU, EPIC Case, Federal Court Strikes Down Internet Censorship Law. Today, the Third Circuit Court of Appeals struck down the Child Online Protection Act, a federal law that sought to prohibit the publication of information on the Internet that could be considered "harmful to minors." The Court held that the law violated the First and Fifth Amendments because it is "impermissibly overbroad and vague." The Court also criticized the law's encroachment on the right of Internet users to receive information anonymously, a claim that EPIC raised early in the litigation. The lawsuit challenging the Child Online Protection Act began nearly ten years ago, following the Supreme Court's invalidation of Congress' first attempt to censor the Internet, the Communications Decency Act. (July 22, 2008)

Supreme Court Maintains Block on Web Censorship Law. In a decision issued today, the U.S. Supreme Court has upheld a lower court injunction against enforcement of the Child Online Protection Act (COPA). EPIC joined a coalition of plaintiffs in a challenge to the Internet censorship law in 1998 and has served as co-counsel in the case. The Court found that the government has not shown that there are no "less restrictive alternatives" to COPA, and that "there is a potential for extraordinary harm and a serious chill upon protected speech" if the law goes into effect. (June 29, 2004)

Court Strikes Down Censorship Law (Again). The Third Circuit Court of Appeals has, for the second time, ruled that the Child Online Protection Act (COPA) is unconstitutional. In a decision (pdf) issued on March 6, 2003, the court found that the law violates the First Amendment because it improperly restricts access to a substantial amount of online speech that is lawful for adults. The decision follows a Supreme Court decision that sent the case back to the appeals court, which had previously ruled that COPA was unconstitutional. EPIC is co-counsel in the case.

Supreme Court Maintains Ban on COPA Enforcement. The Supreme Court on May 13, 2002, issued a decision on Congress's latest attempt to censor the Internet. The Court did not decide any of the core legal questions, but ordered a lower court to decide the case on a wider range of First Amendment issues. Meanwhile, a majority of justices appeared to have grave doubts about the law's ultimate constitutionality, and the Court left in place an injunction barring enforcement of the law.  The case has to do with a law passed by Congress in 1998 called the Child Online Protection Act (COPA), a broad censorship law that severely restricts any speech on the Web that is "harmful to minors," and imposes steep fines and prison terms for violators.

Oral Argument Before Supreme Court. The United States Supreme Court heard oral argument on the constitutionality of the Child Online Protection Act (COPA) on November 28, 2001. The parties' briefs are available in PDF.

Procedural History

In February of 1996, the Communications Decency Act (CDA) was enacted as part of the Telecommunications Act of 1996. CDA sought to protect minors from harmful material online by criminalizing internet transmission of "indecent" materials to minors. In 1997, the Supreme Court ruled 9-0 in Reno v. American Civil Liberties Union that CDA was an unconstitutional restriction on the Internet, a "unique and wholly new medium of worldwide human communication" deserving of full First Amendment protection. Because only obscenity is regulable, the regulations would effectively reduce the constitutionally protected material available to adults "to only what is fit for children." The unique characteristics of Internet communications (its ready availability and ease of use) were integral to the decision. Because it is possible to warn viewers about incipient indecent content (unlike radio, where warnings fail to protect all potential listeners), and because alternatives exist, at least in theory, the CDA's provisions cast a "far darker shadow over free speech which threatened to torch a larger segment of the Internet community than [any] speech restrictions previously encountered." For more information and background, see EPIC's CDA Page.

In October 1998, Congress passed and President Clinton signed into law the Child Online Protection Act (COPA), the "sequel" to CDA. COPA establishes criminal penalties for any commercial distribution of material harmful to minors.

EPIC joined with the ACLU and other plaintiffs in a lawsuit to strike down the law.

In February 1999, the federal district court in Philadelphia issued an injunction preventing the government from enforcing COPA. That court held that COPA was invalid because there is no way for Web speakers to prevent minors from harmful material on the Web without also burdening adults from access to protected speech. Although COPA contains a defense if Web speakers restrict access by requiring a credit card or adult access code, the evidence clearly established that either defense would burden free speech, for at least five reasons:

1. they deny access to all adults without credit cards;

2. they require all interactive speech on the Web to be placed behind verification screens, even speech that is not "harmful to minors";

3. they deter adults from accessing protected speech because they impose costs on content that would be free, eliminate privacy, and stigmatize content;

4. they allow hostile users to drive up costs to speakers; and

5. they impose financial burdens on speakers that will cause them to self-censor rather than incur those burdens.

The plaintiffs -- a coalition of cyber-rights groups and Web publishers -- filed an appellate brief in August 1999 supporting the injunction of COPA.

The Third Circuit Court of Appeals affirmed on June 22, 2000, finding that COPA was unconstitutional on a different ground. "Because of the peculiar geography-free nature of cyberspace, [COPA's] community standards test would essentially require every web communication to abide by the most restrictive community's standards."

In late February, 2001, the Department of Justice filed a petition for certiorari asking the U.S. Supreme Court to reverse the decision of the Third Circuit. In April EPIC joined with the ACLU and EFF in a brief opposing certiorari that asked the U.S. Supreme Court not to disturb the decision of the Third Circuit Court of Appeals that found the Child Online Protection Act to be unconstitutional.

Legal Documents

Press Releases

The Blue Ribbon Campaign is being jointly sponsored by the American Civil
Liberties Union, the Electronic Frontier Foundation, and the
Electronic Privacy Information Center.

More information on Internet censorship is available at
the Internet Free Expression Alliance website.

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EPIC Free Speech Page | EPIC Home Page

Last Updated: February 3, 2009
Page URL: http://www.epic.org/freespeech/copa/default.html