Mayer Brown's



2000 Term, Number 15 / May 21, 2001

Today the Supreme Court granted certiorari in one case of potential interest to the business community. Amicus briefs in support of the petitioners are due on Thursday, July 5, 2001, and amicus briefs in support of the respondents are due on Monday, August 6, 2001. Any questions about this case should be directed to Eileen Penner (202-263-3242) or Miriam Nemetz (202-263-3253) in our Washington office.

Child Online Protection Act — First Amendment. The Child Online Protection Act ("COPA"), 47 U.S.C. § 231 et seq., establishes criminal and civil penalties for knowing use of the World Wide Web to make "any communication for commercial purposes that is available to minors and that includes material that is harmful to minors," unless good faith efforts are made to prevent children from obtaining access to such material. The Act defines content "harmful to minors" as sexually explicit material, lacking "serious, literary, artistic, political or scientific value for minors," which "the average person, applying contemporary community standards," would find to be designed "with respect to minors * * * to appeal to * * * the prurient interest." 47 U.S.C. §231(e)(6). The Act provides Web publishers with an affirmative defense to liability if they require use of a credit card, debit account, adult access code, or digital age-verification certificate, or employ other "reasonable measures that are feasible under available technology," to prevent minors from gaining access to materials deemed harmful to them. Id. § 231(c)(1). The Supreme Court granted certiorari in Ashcroft v. American Civil Liberties Union, No. 00-1293, to decide whether COPA's reliance on "community standards" to define "harmful" material causes the statute to violate the First Amendment.

COPA is Congress's second attempt to shield minors from sexually explicit material on the Internet. The Supreme Court struck down Congress's first effort, the Communications Decency Act of 1996, on the ground that its restraints on "indecent" and "patently offensive" material were not the "least restrictive alternative" and thus did not survive strict scrutiny. Reno v. American Civil Liberties Union, 521 U.S. 844, 879 (1997). In enacting COPA, Congress sought to cure the deficiencies identified by the Court in Reno.

On the day after COPA's enactment, the ACLU — which was later joined by providers of Internet sites displaying art, medical and sexual health information, magazines, and resources for gays and lesbians — filed suit in the United States District Court for the Eastern District of Pennsylvania, seeking to enjoin enforcement of COPA on the ground that it violates the First Amendment. The district court granted a preliminary injunction barring enforcement of the Act. 31 F. Supp. 2d 473 (E.D. Pa. 1999). The court based its ruling on its preliminary conclusions that the statutorily approved mechanisms for screening out materials deemed harmful to children might also limit access by adults to non-obscene material and that parents could protect children equally well without impeding adults' access by purchasing and installing blocking software. Id. at 497.

The Third Circuit affirmed. 217 F.3d 162 (2000). Although the court rejected the district court's view that the installation of filtering software by parents was a less restrictive means for the government to achieve its compelling interest in protecting children, the court nonetheless found that COPA's reliance on "contemporary community standards" to identify material that is harmful to minors "imposes an impermissible burden on constitutionally protected First Amendment speech." Id. at 166. Noting that the Internet is available in all geographic regions, and pointing to the Supreme Court's observation in Reno that "any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message," the court of appeals concluded that COPA would force Web publishers either severely to censor their publications or to implement adult screens for any material that "might be deemed harmful by the most puritan of communities." Id. at 175. Because such restrictions would burden access in all communities to material that would only be deemed "harmful" in some communities, the Court concluded that COPA imposes an "overreaching burden and restriction" on constitutionally protected speech. Id. at 177.

This case is of immediate significance to all businesses that make available on the Internet content that might be considered "harmful to minors"— including, for example, health networks, poetry and visual arts sites, and online magazines. The Supreme Court's decision also may establish precedent significant in future cases to all types of publishers and broadcasters.

This Mayer, Brown, Rowe & Maw Supreme Court Docket Report provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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