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COPA is ''constitutionally infirm'' (again)
Posted by Steven Wu on Friday, March 07 @ 15:28:41 EST Free Expression
Last term, the Supreme Court vacated and remanded a Third Circuit decision in the case of Ashcroft v. ACLU [PDF], which concerned the Child Online Protection Act (COPA). COPA, which has never been enforced, made it illegal for people to "make available" on the Internet any material that is "harmful to minors." This essentially required people to make a good faith effort to restrict minors' access to any potentially harmful materials.

COPA defined "harmful" material as any online communcation that

(A) "the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest" (emphasis added)

(B) depicts simulated or actual sexual images or acts

(C) "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors"

The Third Circuit had originally ruled that COPA was unconstitutional because it applied local community standards as the criteria for obscenity on a global medium, the Internet. The Supreme Court vacated and remanded this decision because this rationale was insufficient to strike down a law.

Now, on remand, the Third Circuit has once again struck down COPA, this time on First Amendment free speech grounds, since COPA unduly restricts the ability of adults to view First Amendment-protected material, of both the pornographic and non-pornographic varieties. The Third Circuit's ruling thus upholds an injunction that bars the government from enforcing COPA.

The AP story is here. The Third Circuit decision is here [PDF].

The government is still deciding whether to appeal this back up to the Supreme Court.

 
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