** Continued From: COPA - This is It!

The US Supreme Court lobbed another volley at the Child Online Prevention Act. On June 29, 2004 they upheld the injunction against this controversial law and sent it back to a lower court for trial.

The Child Online Prevention Act (COPA) became law in 1998. COPA was a legislative response to the death of the Communications Decency Act of 1996, struck down by the High Court as unconstitutional. COPA suffered its first injunction by a lower court less than one year after it’s passing. The Third District Court of Appeals upheld that injunction in 2000. COPA then went before the US Supreme Court in 2002. The Justices sent the case back to the Third Circuit (in 2003) where the injunction was reaffirmed. This year the Justice Department was allowed a Supreme Court hearing on COPA as a result of a writ of certiorari. The highest American court had the fate of the entire adult Internet industry in their hands and in a surprising move, they chose not to choose.

It was a surprising move to me, anyway. The Supreme Court upheld the ban on this law but instead of making a final ruling, they decided the issue should go to trial.

The text of COPA states that the following is illegal:

“Material that is harmful to minors

The term "material that is harmful to minors" means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that--

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors…”

I was absolutely positive this ruling would be the last ruling. I was sure that two old ladies and seven old men would resolve the issue of COPA, once and for all. Frankly I was worried that the court would uphold COPA. My worries almost came true considering the injunction squeaked by with a 5-4 vote. Justice Scalia -in his dissenting opinion- wrote:

“…I agree with Justice Breyer’s conclusion that the Child Online Protection Act (COPA), is constitutional. Both the Court and Justice Breyer err, however, in subjecting COPA to strict scrutiny. Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review. We have recognized that commercial entities which engage in ‘the sordid business of pandering’ by ‘deliberately emphasiz[ing] the sexually provocative aspects of [their nonobscene products], in order to catch the salaciously disposed,’ engage in constitutionally unprotected behavior’. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 831 (2000)…

…There is no doubt that the commercial pornography covered by COPA fits this description. The statute applies only to a person who, as a regular course of such person’s trade or business, with the objective of earning a profit, and with knowledge of the character of the material…communicates material that depicts certain specified sexual acts and that is designed to appeal to, or is designed to pander to, the prurient interest. Since this business could, consistent with the First Amendment, be banned entirely, COPA’s lesser restrictions raise no constitutional concern.”

Do I want to protect children from adult content? Of course I do. Do I think we need regulation that punishes those who prey on minors? You bet your boots I do. We need laws. We just didn’t need this law. There are better ways to protect children from inappropriate content and the majority opinion of the court agrees with me:

“…Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed…”

In his majority opinion, Justice Kennedy also said:

“…The Government has failed, at this point, to rebut the plaintiffs’ contention that there are plausible less restrictive alternatives to the statute. Substantial practical considerations, furthermore, argue in favor of upholding the injunction and allowing the case to proceed to trial. For those reasons, we affirm the decision of the Court of Appeals upholding the preliminary injunction, and we remand the case so that it may be returned to the District Court for trial on the issues presented…”

For the moment, the adult Internet community has been saved the turmoil of complying with COPA. But it’s not over. The fat lady didn’t sing. The legality of Child Online Protection Act might go to trial. The Justice Department could drop their suit to allow enforcement of COPA but they probably won’t. So breathe a sigh of relief but don’t get too comfortable!