Ashcroft v. ACLU, No. 03-218 (U.S. June 29, 2004)

The U.S. Supreme Court has ruled that a federal district court’s preliminary injunction barring enforcement of the Child Online Protection Act (COPA) until trial is completed is valid because COPA "likely violates the First Amendment." In 2002, the U.S. Supreme Court had vacated the U.S. Court of Appeals for Third Circuit’s ruling that COPA’s use of "contemporary community standards" to identify material harmful to minors violates the First Amendment’s free speech guarantee. Holding that reliance on community standards does not "by itself" render the statute substantially overbroad, the Supreme Court remanded the case to the Third Circuit for consideration of other grounds on which COPA might be unconstitutional. On remand the Third Circuit ruled that COPA failed to pass constitutional muster on two grounds: (1) strict scrutiny, and (2) overbreadth. The case then returned to the Supreme Court. Justice Kennedy delivered the Court’s opinion. He was joined by Justices Stevens, Souter, Thomas, and Ginsburg. Justice Stevens, joined by Justice Ginsburg, filed a concurring opinion. Justice Scalia filed a dissent. Justice Breyer, joined by Chief Justice Rehnquist and Justice O’Connor, also filed a dissenting opinion. The Court agreed with the district court that there are less restrictive methods than COPA’s for achieving the laudable goal of protecting minors from harmful Internet material. Specifically, the federal government failed to demonstrate that the use of blocking and filtering software is inadequate to protect children.

[Editor’s Note: The Child Online Protection Act (COPA) should not be confused with the Children’s Internet Protection Act (CIPA). CIPA requires school districts that receive funding under the No Child Left Behind Act or federal E-rate discounts to adopt Internet safety measures to protect children from harmful materials. COPA, on the other hand, targets those who publish adult material on the Internet. The Supreme Court upheld CIPA against a free speech challenge last year. See below.]