COPA was Congress's second attempt to criminalize the Internet distribution of what it considered pornography, including simulated pornography and artwork. COPA enforces penalties of a $50,000 fine and six months in prison for the posting for "commercial purposes" of content on the internet that is "harmful to minors". Material that is "harmful to minors" is defined as:
"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." §231(e)(6).
Opponents of COPA argued that child pornography is already illegal, and COPA would not be effective because it would waste too much time going after individual sites within the US which could simply set up shop overseas if shut down. It was also argued that COPA would infringe upon rights of adults to receive non-pornographic/harmful messages, and that COPA was not the least invasive or most efficient way to protect children from harmful online content.
On April 1, 1999, Congress appealed the District Court ruling in the U.S. Court of Appeals for the Third Circuit.
On June 22, 2000, the Third Circuit affirmed the preliminary injunction against COPA because they deemed it impossible to apply “contemporary community standards” to the internet. Congress then appealed this decision to the Supreme Court.
On May 13, 2002, the U.S. Supreme Court affirmed the injunction, and sent the case back to the lower courts. The Supreme Court ruled that using community standards would cause more harm than good because as Justice Stevens said “If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web. I continue to believe that the government may not penalize speakers for making available to the general www audience that which the least tolerant communities in America deem unfit for their children’s consumption.”
On October 29, 2002 the Appeals court for the 3rd Circuit heard the case again, and once again the injunction was upheld in March 2003.
On June 29, 2004, the Supreme Court found COPA unconstitutional.
...COPA defines "material that is harmful to minors" asCOPA opponents argued that self installed filters were much more effective at blocking obscene/indecent content, and would allow individuals to choose what content they wanted to see, not the government. Opponents also held that legal speech would be made criminal by COPA, and that adults would be prevented from seeing legal content if they did not have a credit card to get past security screens. It was also argued that in some cases fully complying with COPA would not have guaranteed freedom from prosecution (Stevens) and that the plan was flawed because some minors do have their own credit cards, and could thus go around the screens with ease.
- "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." 47 U. S. C. §231(e)(6).
Issues: Filters: They have four problems. 1. Under blocking where some pornographic material is still able to pass through. 2. Software costs money and not every family has the $40, or so, necessary for installation. 3. Filtering depends upon the parent’s willingness to decide which web sites are suitable for their children and enforcing this. 4. Software blocking lacks precision. A lot of valuable material is blocked along with the harmful content.
Wording: The phrases, “prurient interest” and “no serious value” block material that does not fall within the law. For example, material that would be blocked under these phrases are: serious discussions about birth control practices, homosexuality, or the account by a 15-year-old girl who was raped, and a guide to the self-examination of testicular cancer. There is an uncertainty about how to define close to obscene material that may be on the border of being defined as indecent.
Age Verification: Age screening could lead to embarrassment in some users. This requires all adults to enter a credit card number or age verification number, even if they are childless. Problem: Children may obtain a parents credit card number, if desired. Decision: COPA should be enjoined because the statute likely violates the first amendment. There are less restrictive alternatives to COPA. Blocking and filtering software are less restrictive. Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Childless adults can access information they have a right to see without having to identify themselves. Adults with children may turn off their filters to access material they wish to view. Congress passed two more less restrictive alternatives to COPA: the prohibition of misleading domain names and the minor safe “dot-kids” domain name. Blocking and filtering software also blocks all pornography (40% of content deemed harmful to minors comes from overseas).
They argued that Congress could not have possibly achieved its statutory objective in another, less restrictive way, that COPA did not impose a large amount of limits on free speech, and that the Act was tailored to fit a compelling interest . The reasons they give are as follows:
Filters are among the suggested methods of using less restrictive means to protect minors from “harmful” content. However, filtering technology that is available today lacks in several different ways.
1- Filtering is faulty. It allows some harmful material to get through because filters use a system of matching key words and phrases, and lack the capability to distinguish between images that are deemed “obscene” and those that are not.
2- In this same sense, filters lack precision. They block out some valuable material along with the harmful material deemed “obscene”. An example of this given in Justice Breyer’s dissent is the ACLU informing Congress during a hearing that filtering software “blocks out valuable and protected information, such as information about the Quaker religion, and web sites including those of the American Association of University Women, and the AIDS Quilt. This is an extreme weakness of filters, something that will probably be used in arguments against them until, and if, new technology is developed that is able to define and deem what is “obscene” and what is not.
3- It is not possible for a parent to control filters on all computers, and the likelihood of a minor to simply use a different computer without a filter on it is extremely high. This is the problem with filtering content at the user end, and not at the source. It is impossible to enforce parental monitoring of their children. Justice Breyer uses an example illustrating that
“more than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents.”
4- Filtering software costs money.
Justice Breyer then argues a second point: The court had decided that the Act was not narrowly tailored to fit Congress’s “compelling interest”, or its intended objective. This means that the court deemed that COPA included too large a scope of regulated content to be determined constitutional under the First Amendment, and in turn it was not capable of achieving Congress’s goal of protecting minors from harmful online content. Justice Breyer argues the contrary.
In Justice O'Connor's concurrence, she says that the Act as "properly interpreted" imposes “only a modest burden on protected speech”. She uses the Miller v. California case to highlight this. Comparing the Miller precedent’s definition of what is deemed legally obscene, she shows how COPA’s terminology is extremely similar to that of the Miller case. She argues that “the only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors”, and “for minors”, and that this broadens the Act’s scope only slightly.
She also argues that the Act was tailored to fit a compelling interest, and that the use of “alternative” and “less restrictive” regulation such as filters was not tailored to fit a compelling interest, and she in fact argued that filters are the “status quo”. She argues that filters, as they are readily available now, do not further Congress’s goals in any way, and in turn do not pursue a compelling interest. Sticking with the “status quo” is always easier, but it does not further the goal, and it only allows the problem to perpetuate. She gives the example of “despite the present existence of filtering software, children are still gaining access to harmful material”.
She says that the court should not have asked whether the Act uses the least restrictive means possible to protect minors from harmful content, but whether it advances Congress's goals?
She concludes that COPA does not enact major burdens on free speech when it is properly interpreted. That it “significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography”. And that there is no “practically available, less restrictive way similarly to further this compelling interest.”