A three-judge panel from the Third US Circuit Court of Appeals has once again smacked down the Children's Online Protection Act as unconstitutional. I say "once again" because their first smackdown- based on the reasoning that it is impossible to establish what "contemporary community standards" are as applied to the Internet- was rejected by the Supreme Court.

Upon further review, the panel concluded that the law wasn't narrowly tailored; that is, it would punish a broad variety of speech that might be appropriate for one audience simply because it wasn't appropriate for another. That is to say, a site like morons.org could be prosecuted under the law because its content isn't appropriate for 5-year-olds. In the decision the court stated, "[b]ecause COPA s definition of harmful material is explicitly focused on minors, it automatically impacts non-obscene, sexually suggestive speech that is otherwise protected for adults."

The panel further attacked COPA based on a number of vague terms used in the law; for example, in stating an exemption for documents posted for "non-commercial" purposes, there's no definition given regarding what amount of profit would constitute a "commercial" site. In fact, according to the court decision, "[t]he statute does not limit the term minor in any way..." a fairly significant oversight for a law that ostensibly exists to protect "minors"!

The law had sought to require web site operators to validate age by verifying credit card information; however, this was seen by the panel as an unreasonable restriction placed on the audience with a legitimate interest in accessing the content; that is, requiring an adult to validate with a credit card and forcing the web site operator to utilize a facility for validating credit card information places an undo burden on speech. In addition, the decision notes that validating age with a credit card forces the identity of the viewer to be revealed, something which may stifle speech of a sensitive nature, and which the Supreme Court has frowned upon in the past ("such restrictions can have an impermissible chilling effect on those would-be recipients.")

COPA was a response to the throwing-out of the flatly unconstitutional "Communications Decency Act" that attempted to reduce the scope of the law. However, the panel found that despite reducing the scope of the law, "the recited standard for liability in COPA still contains a number of provisions that are constitutionally infirm."

The panel further concluded, "COPA is clearly a content-based restriction on speech. Although it does purport to serve a compelling governmental interest, it is not narrowly tailored, and thus fails strict scrutiny. COPA also fails strict scrutiny because it does not use the least restrictive means to achieve its ends. ... We conclude that the statute is substantially overbroad in that it places significant burdens on Web publishers' communication of speech that is constitutionally protected as to adults and adults' ability to access such speech. In so doing, COPA encroaches upon a significant amount of protected speech beyond that which the Government may target constitutionally in preventing children's exposure to material that is obscene for minors."

Some other highlights from the decision:

"The affirmative defenses do not save the statute from sweeping too broadly. First, the affirmative defenses, if employed by Web publishers, will result in a chilling effect upon adults who seek to view, and have a right to access, constitutionally protected speech. ...

"Second, the affirmative defenses impose a burden on Web publishers, and as such, do not alleviate the chilling effect that COPA has on their speech. Web publishers will be forced to take into account the chilling effect that COPA s affirmative defenses have on adult Web users. Consequently, COPA will cause Web publishers to recoil from engaging in such expression at all, rather than availing themselves of the affirmative defenses. Additionally, the financial costs of implementing the barriers necessary for compliance with COPA may further deter some Web publishers from posting protected speech on their Web sites."

We applaud the Third Circuit's decision, and hope that COPA can finally be banished to the wasteland of other overbroad, poorly-tailored, unconstitutional solutions looking for problems. Further, it is my hope that the sponsors of COPA and those who voted for it have either found themselves booted out of office already or will soon.

---Nick