The Child Online Protection Act of 1998, which was passed by Congress in 1998 in an effort to restrict minorsâ€™ access to adult-oriented websites, has again been struck down in the courts. (Decision here) Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, ruled that:
COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not narrowly tailored to Congress' compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad. As a result, I will issue a permanent injunction against the enforcement of COPA.
This decision perpetuates the unbroken chain of Internet censorship cases that the government has lost since the Communications Decency Act of 1996 was overturned over ten years ago. After the CDA was rejected by a lower court and the Supreme Court, Congress passed COPA in 1998. COPA provided an affirmative defense to prosecution if a website operator could show that it had made a good faith effort to restrict site access by requiring a credit card, adult personal identification number, or some other type of age-verifying certificate or technology. But COPA was immediately challenged and has gone to the Supreme Court for review twice and, most recently, it has been stuck in the U.S. District Court where the government was again defending its constitutionality in a 4-week trial last Fall.
Thus, almost 10 years after its initial passage, the legislation remains stuck in jurisprudential limbo after endless legal wrangling about its constitutionality. Untold millions have been spent by the government litigating this decision, and they may not be done yet. If the Department of Justice appeals this latest ruling, the law might again be considered by the Third Circuit Court of Appeals and then make another return trip to the Supreme Court for an unprecedented third review by the highest court in the land.
If all the money that has been spent litigating this case had instead been spent on media literacy and online safety campaigns, it could have produced concrete, lasting results. But our government appears obsessed with pursuing regulatory mandates and legal appeals instead.
(Note: In part 2 of this essay, I will discuss what the latest court decision had to say about the effectiveness of filtering and age verification).