Like a performance of John Cage’s ORGAN2/ASLSP (“As Slow As Possible”), in which the notes played change every year or so, the COPA statute has just fallen yet again. The statute, first enacted in 1998, has been strongly challenged on First Amendment and other grounds, and yesterday’s Third Circuit opinion announced a dozen reasons why it is unconstitutional. The statute has already made two trips to the Supreme Court and may well make a third.
If you are asked at a cocktail party what the statute is about and why it keeps traveling from Philadelphia to Washington DC and back again, here’s what you could say.
The bottom line is that the government failed to meet its burden of showing that COPA is the least restrictive means of advancing an interest in protecting children from being exposed to harmful material on the web. The 3d Circuit and the district court (as well as the SCT the last time around) have found that filters are more effective and less restrictive than COPA’s implementation. COPA would require all Web publishers that are arguably within the statute’s coverage (a big group whose outlines are blurry) to install protective covers of one sort or another, but filters (by contrast) are readily available to parents, inexpensive, easily modified, and getting better all the time. Given the current composition of the Supreme Court, it’s not clear that the Third Circuit approach will be greated sympathetically this time around.
COPA is known as the “son of the CDA,” which was pronounced unconstitutional in one of U.S. internet law’s keystone opinions, Reno v. ACLU. The Child Online Protection Act (pronounced COPE-ah), put in place after CDA was struck down, is wildly different from COPPA, KOPP-ah, which has to do with the privacy of personally identifiable information about less-than-13-year-olds.
COPA, which has never been enforced, created civil and criminal penalties (including six months in jail) for anyone who knowingly posts “material that is harmful to minors” on the web “for commercial purposes.” Web publishers that are prosecuted can claim affirmative defenses under COPA if the publisher
has restricted access by minors to material that is harmful to minors — (A) by requiring use of a credit card, debit account, adult access codt, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology.
COPA was immediately challenged when it was adopted because indecent speech that may be “harmful to minors” is legal for adults. Setting up criminal penalties for this legal-for-adults speech online puts the government in the role of censor – limiting access to speech on the basis of its content. Our law takes that kind of activity very seriously, and content-based restrictions of this kind are presumptively invalid.
Now, the government can rescue a statute like this, even if it’s content-based, by showing that it is “narrowly tailored to futher a compelling government interest.” (This is “strict scrutiny”.) Here, the government interest is protecting kids, and everyone seems to agree that that test is met.
The hard questions come with “narrowly tailored.” That test is a vessel for (or an alternative to) another test: whether the restriction is the “least restrictive alternative” for advancing the government interest.
The Third Circuit yesterday announced a host of reasons why COPA is insufficiently narrowly tailored, many based on the terms of the statute. The coverage of the HTM definition is vague, the court felt, and so publishers won’t be able to tell in advance whether their operations are all subject to the COPA constraint (what if only a tiny portion of a web site has arguably HTM material on it?) or what fits within the HTM definition (are you supposed to be protecting 3 year-olds as well as 16 year-olds?).
The court also found that having to implement credit card, debit account etc. shields would burden the providers of free web sites whose operations are nonetheless “commercial” and so covered by COPA. This was another instance of insufficient tailoring.
But the key element here is that the Third Circuit held that the government had to carry the burden of showing that filters were less effective than COPA, and it failed to do that. In fact, it appears that filters are both less restrictive and more effective than the operation of the statute, based on extensive findings of fact by the district court below.
This approach may be difficult for the current Supreme Court to agree with. It was difficult enough the last time. The analytical frameworkadopted by the Third Circuit follows what Justice Kennedy said then – that it is the Court’s job to consider what alternatives are out there in the world to help parents, and to decide whether they’re more effective/less restrictive than COPA.
The point, Justice Kennedy said, is to is Ã¢â‚¬ËœÃ¢â‚¬Ëœto ensure that speech is restricted no further than necessary,Ã¢â‚¬â„¢Ã¢â‚¬â„¢ not to consider Ã¢â‚¬ËœÃ¢â‚¬Ëœwhether the challenged restriction has some effect in achieving CongressÃ¢â‚¬â„¢ goal, regardless of the restriction it imposes.Ã¢â‚¬â„¢Ã¢â‚¬â„¢ So the court’s job is not to ask whether COPA would provide government with another tool to address harmful speech in the name of protecting kids. That standard would justify any restriction on speech. Instead, the inquiry should be Ã¢â‚¬ËœÃ¢â‚¬Ëœwhether the challenged regulation is the least restrictive means among available, effective alternatives.Ã¢â‚¬â„¢Ã¢â‚¬â„¢ Right now, filters are more effective and less restrictive than COPA (or, at least, the government didn’t prove that they weren’t), and so the government loses. Never mind that filters are voluntary and that a lot of parents choose not to use them – that’s the parents’ choice. Filters are available.
The government’s argument to the Third Circuit, and probably to the Supreme Court, will be that this is a maddeningly flawed analytical approach. The government would like to see a more protective, quasi-parental approach (on the assumption that parents are busy shoring up the failing economy and can’t be counted on to be watching their kids or caring what they see).
Justice Breyer was very sympathetic to that view the last time around. His point is that filtering doesn’t count as an alternative to COPA. (Ã¢â‚¬ËœÃ¢â‚¬ËœThe presence of filtering software is not an alternative legislative approach to the problem of protecting children.”) Doing nothing, legislatively, will always be less restrictive than doing something. He also thinks COPA isn’t much stronger than the Miller obscenity test and would only modestly burden adult access to legal adult speech.
Veteran SCT-watchers will count noses, in this case as in Fox v. FCC, and try to figure out what will happen next. Last time around, Justice KennedyÃ¢â‚¬â„¢s majority opinion was joined by Stevens, Souter, Thomas, and Ginsburg, all of whom are still there. Justice Stevens wrote a concurring opinion, which was joined by Justice Ginsburg. Justice Scalia filed a dissent, as did Justice Breyer, who was joined by Chief Justice Rehnquist (now Roberts) and Justice OÃ¢â‚¬â„¢Connor (now Alito). So maybe the 5-4 will stay in place. But if Thomas goes over to the dissenting side, and Justice Breyer’s analytic approach (“what do you mean, filtering is an alternative?”) gathers steam, COPA could survive its third trip to the SCT and be upheld.
This case is a big deal because it turns on the question whether private, edge-based solutions to speech issues should be taken seriously. I think they can, and I don’t want to see a lot of government tinkering with the sources of speech. (I don’t think highspeed access providers are speakers – they’re conduit.) Let’s hope the government drops the COPA effort, which has now stretched on for almost ten years.