Third Circuit rules Internet pornography law overbroad

PENNSYLVANIA — The U.S. Court of Appeals for the ThirdCircuit struck down the Children’s Online Protection Act for a second timeMarch 6, declaring the law overbroad in its effort to safeguard children fromInternet pornography.Under COPA, it is a federal crime to publish, “forcommercial purposes,” any material on the World Wide Web that is considered“harmful to minors.” Web publishers could be fined a maximum of$150,000 for each day of violation and receive up to six months inprison.The three-judge panel for the Third Circuit said the provision,“for commercial purposes,” wrongly provides COPA jurisdiction over awide range of Web sites including educational sites about sex. The court alsosaid that COPA would effectively require Web site operators to self-censor andexclude valuable and protected speech for adults in order to avoid criminalprosecution. “COPA’s definition of a ‘minor’ asany person under the age of seventeen serves to place at risk too wide a rangeof material that might be protected for adults,” the courtruled.And the court argued that COPA was “significantlyover-inclusive” because sex education material that might be“patently offensive” to 10 to 13-year-old children may have“serious value” for 16-year-olds.In its discussion of theSafer Sex Institute Web page, which lists six steps for properly using a condom,the court said, “We also note that the same Web page provides links toinformation within the [Safer Sex Institute] Web site of potential importance toadults (and possibly certain minors).”In its ruling, the ThirdCircuit again affirmed a district court’s granting of preliminaryinjunction against the enforcement of COPA. In June 2000, the Third Circuitupheld the injunction on the grounds that the provision, which said materialwould be determined as “harmful to minors” based on“contemporary community standards,” was overbroad. The court arguedthat a person who posts information on the Internet cannot control the geographyof where it is viewed, and therefore the court said the most conservativecommunity standards would apply nationwide, which it deemed wasunconstitutional.The government appealed the case to the U.S. SupremeCourt, which determined that the Third Circuit ruling on the “communitystandards” provision did not by itself render the statute substantiallyoverbroad for purposed of the First Amendment. The Court remanded the case backto the Third Circuit for it to consider a wider range of First Amendmentissues.In its decision earlier this month, the Third Circuit found COPAunconstitutional on the grounds that its definitions of “minor,”“harmful to minors” and “for commercial purposes,” areoverbroad. The court also took issue with the community standards provisionagain.The government has argued throughout the case that Web publisherswould not be punished under COPA if they made a “good faith” effortto restrict access to minors. They suggested requiring the use of a credit card,adult access code or adult personal identification number as ways to determinethe age of the person seeking access to the Web site. The Third Circuitagreed with the finding of the district court that the measures suggested by thegovernment “will likely deter many adults from accessing restrictedcontent, because many Web users are simply unwilling to provide identificationinformation to gain access to content, especially where the information theywish to access is sensitive or controversial. Such restrictions can have animpermissible chilling effect on those would-be recipients.”Thisis the government’s second attempt to shield children from pornography onthe Internet. It has 90 days to ask the Supreme Court to review thedecision.

ACLU v. Ashcroft, 322 F.3d 240 (3d Cor. 2003)

Read previous coverage