The Communications Decency Act (CDA)

The Communications Decency Act was the predecessor to COPA, and COPA is often referred to, sometimes derisively, as "the son of CDA" or "CDA II." The CDA (formerly codified at 47 U.S.C. §223), prohibited displaying in a manner available to persons under 18 years old "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

The ACLU and several other organizations sued for a declaratory judgment to have the law declared unconstitutional. After several years in the course of litigation, the United States Supreme Court ultimately found the law unconstitutional in Reno v. American Civil Liberties Union, et al., 521 U.S. 844 (1997). The Court held that the statute was a content based blanket restriction that was overbroad on its face (i.e., the statute could not be saved by restricting its application). Although Justice O'Connor, joined by Chief Justice Rehnquist, wrote an opinion that dissented in part from the reasoning of the majority and finding that the CDA was little more than an attempt to create "adult zones" on the Internet, the dissent agreed that the statute strayed from the guidelines for "zoning laws" of previous decisions. The conclusion that the statute was unconstitutional was thus unanimous.

A more complete analysis of the Court's opinion and its relation to the COPA legislations and litigation is contained in Part II of this series.

The Child Online Protection Act (COPA)

In response to the decision that CDA was unconstitutional, Congress enacted COPA, 47 U.S.C. §231, in an attempt to cure the deficiencies found in CDA. COPA attempts to narrow the restrictions and to limit the definitions of certain terms.

COPA's prohibited conduct is as follows: "Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both."

Additional provisions provide for a criminal penalty of $50,000 for each intentional violation, with each day counting as a separate violation. Similar civil penalties are also available.

A person makes a communication for "commercial purposes only if such person is engaged in the business of making such communications." In turn "engaged in the business" means in the regular course of a trade or business with the objective of making a profit. The trade or business does not have to be the sole, or even primary, trade or business of the person, and it does not matter whether the person actually makes a profit.

A minor is defined as any person under 17 years of age. In defining "harmful," the statute states:

Much of this language is taken directly from previous Supreme Court cases attempting to fix parameters on legislation dealing generally with pornography and addresses the Supreme Court's concerns from the CDA case. As will be seen, the language of the statute continues to pose problems.

The statute also provides for an affirmative defense to prosecution if a defendant has in good faith restricted access by minors to the harmful material by any of the following means:

• by requiring use of a credit card, debit account, adult access code, or adult personal identification number
• by accepting a digital certificate that verifies age
• by any other reasonable measures that are feasible under available technology

Almost immediately, in fact, the day after COPA was signed into law, the ACLU, joined by such diverse groups as the American Booksellers Foundation, the popular Powell's Bookstore in Portland, Oregon, Philadelphia Gay News, the Electronic Privacy Information Center, and others filed suit for declaratory relief and an injunction against enforcement of the statute.

The United States District Court for the Eastern District of Pennsylvania granted a temporary injunction in American Civil Liberties Union v. Reno, 31 F.Supp.2d 473 (E.D.Pa. 1999), pending trial on the issue of the constitutionality of the statute. The Court found the plaintiffs were likely to succeed on their claim that COPA was not the least restrictive means to achieve the goal of limiting access by minors to harmful material. As discussed in more detail in Part III, "least restrictive means" is one of the yardsticks in which to measure the constitutionality of a statute that limits speech.

On appeal, the Third Circuit Court of Appeals affirmed, the temporary injunction, but on a different theory than that of the District Court. 271 F.3d 162 (3rd Cir. 2000). The Court of Appeals found that the "community standard" language in the statute alone made it unconstitutional. The Court did not address the reasoning of the District Court. The Supreme Court then reversed the Appeals Court, finding that the "community standard" language did not violate constitutional standards. 535 U.S. 564 (2002). The Court sent the case back to the Court of Appeals to determine whether the District Court had correctly analyzed the "least restrictive means" issue. The Court of Appeals agreed with the District Court on that issue, upholding the temporary injunction. 322 F.3d 240 (3rd Cir. 2003). On the return to the Supreme Court, the Court affirmed in a 5-4 decision, concluding the plaintiffs were likely to prevail. 124 S.Ct. 2783 (2004).

The case has now returned to the District Court, with trial scheduled for June 12, 2006. The temporary injunction will remain in effect until the trial is concluded and possibly longer, depending on appeal issues relating to trial. Again, the specifics of the litigation and analysis of the court decisions are contained in Part III.