The First Amendment and the Internet:
American Civil Liberties Union v. Reno (Reno II), United States District Court for the Eastern District of Pennslyvania, Civil Action Number 98-5591
Congress' second attempt to regulate the content of aspects of Internet communication failed to pass judicial scrutiny, as the United States District Court for the Eastern District of Pennsylvania held that the Child On-Line Protection Act ("COPA") was likely unconstitutional on its face as violative of the First Amendment. In so doing, the District Court reaffirmed the Supreme Court's ruling in Reno I which held that the Communication Decency Act of 1996 ("DCA") was unconstitutional and that communication over Internet is entitled to the broadest First Amendment protection afforded to traditional media.
Congress passed COPA to specifically address the problem of a minor's access over the Internet to "teasers," which are free, sexually explicit images designed to entice Internet viewers to pay a fee in order to them browse a whole site with pornographic content. By its terms, COPA prohibits anyone from using the "World Wide Web" to make "any communication for commercial purpose . . . that includes any material that is harmful to minors." Penalties for violation of COPA include criminal and civil fines as well as potential imprisonment. COPA does provide three affirmative defenses to avoid prosecution for communicating material considered under the statute to be harmful to minors. One can avoid prosecution in one of the following ways: acquiring the use of a credit card, debit account, adult access code or adult personal identification number; accepting a digital certificate to verify age; or any other reasonable measures that are feasible under available technology
Plaintiffs, who comprised various web site providers and content providers, all with some form of sexual content on their site, challenged COPA on several grounds. Plaintiffs argued that COPA was invalid on its face and as applied to them under the First Amendment insofar as it burdened speech otherwise constitutionally protected for adults. According to the plaintiffs, the affirmative defenses provided in COPA did not alleviate the burden on their speech because the implementation of such measures set forth in the affirmative defenses imposed an economic burden on such speech which burden, given the measures employed, was not justified by a compelling government interest narrowly tailored to that goal.
Siding with the plaintiffs, the district court enjoined enforcement of COPA and held that COPA imposed a burden on speech that is protected for adults. In so finding, the court held that plaintiffs had standing to assert such claims. The court noted that because COPA applied to communications which included, but were not necessarily wholly comprised of, material that is harmful to minors, it may apply to web sites owned by the plaintiffs. The web sites owned by the plaintiff contained material of a sexual nature which, under COPA, could be considered "harmful to minors." Given the potential for violation and the corresponding threat of prosecution, the court found that plaintiffs manifested "imminent injury" sufficient to confer standing
On the merits of their motion for preliminary injunction, the court found that plaintiffs had demonstrated a likelihood of success on their claim that COPA violated the first amendment insofar as it was a content-based regulation which imposed a burden on the speech otherwise protected for adults, and was not narrowly tailored to the stated interest of Congress in drafting that statute. In so holding, the court echoed the Supreme Court's treatment of this issue in Reno I by refusing to qualify the level of First Amendment scrutiny applied to the Internet. The court specifically rejected the argument that the lower level or "intermediate" scrutiny, which has been applied to communications over "commercial speech," should be applied to the Internet.
Under such strict review and recognizing that nonobscene, sexual expression was protected by the First Amendment, the court found that to the extent complying with COPA imposed any economic and financial costs on the web site operators, COPA impermissibly burdened and curtailed a significant amount of protected adult communication over the Internet. As in Reno I, the district court noted that this economic burden was found in the high cost of implementing the appropriate credit card or adult verification systems on an existing web site. The district court observed that technology was not currently available that would effectively prevent minors from accessing a site without denying access to adults. Further, the court found that implementation of credit card or adult verification screens in front of material harmful to minors may deter users from accessing the material, thereby ultimately affecting the web providers financial ability to provide such speech.
The court also held that COPA was not the least restrictive means and was not most narrowly tailored to meet the stated governmental interest in passing COPA. The court recognized that requiring the commercial pornographer to put sexually explicit messages "behind the counter" on the Web, the stated purpose of COPA, was a compelling interest. However, in the court's view, COPA was not the least restrictive means to achieve this objective. Openly questioning the ability of COPA to meet its stated goal, the court noted that minors could access harmful to minors materials on foreign Web sites, non-commercial sites or on-line via other non-http protocols. The court also noted that even with the screening mechanisms outlined in the affirmative defenses of COPA, minors could circumvent such safeguards with relative ease. Given such problems, the court recognized that a filtering or blocking technology may be at least as successful as the measure employed in COPA in restricting minors' access to harmful material on-line without imposing the corresponding burden on constitutionally protected speech.
The court did offer some insight on how future drafters might avoid the same constitutional pitfalls. The court observed that the statutory language prohibiting "any communication" could have been more narrowly tailored to address Congress' goal of shielding minors from pornographic "teaser" material. The court suggested that the statute might have been narrowly tailored if the prohibited forms of content had included "only pictures, images or graphic image files" which are typically employed by adult entertainment web sites as "teasers". The court also noted that COPA could achieve its purpose without the rather severe civil and criminal penalties associated therewith.
The court concluded that while the government interest in protecting children from access to harmful materials is indeed a compelling interest, that interest is outweighed by the rights of plaintiff and the public under the First Amendment to be free from any impermissible burdening on their First Amendment rights by any statute not narrowly drawn to achieve that compelling interest.
The Justice Department has sought review of the district court's decision.
To read the text of the decision click here.