12/5

A second federal law, the Child Online Protection Act (COPA), which was more narrowly focused on commercial purposes of the Internet, aimed to fix the constitutional defects of the CDA by requiring commercial Web publishers (rather than the Internet as a whole) to ensure that minors do not access harmful material directly concerned with commercial purposes on their website. COPA was enacted in October 1998 and was issued a temporary restraining order one month later. In 1999, an injunction was issued against the enforcement of this law, also on First Amendment grounds. In 2000, the Court of Appeals upheld the injunction and determined that COPA was more likely than not to be found unconstitutional by attempting to impose civil and criminal penalties against commercial website operators that publish harmful material.

Under COPA, a three-part test would have determined whether material was harmful to minors: (1) average person would consider material as harmful to minors (2) material represents offensive material to minors by means of depicting an actual or simulated sexual act or contact or exhibition of genitals or post-pubescent female breast (3) materials lacks serious literary, artistic, political, or scientific value for minors.

Please note that while the main purpose of COPA was to address exhibition of sexually inappropriate content, “harmful material” was purposefully stated in a vague manner so as to include other harmful content (i.e. pro-ana websites…cough cough)

COPA also provided Web publishers with affirmative defenses such as age-verification systems by use of credit of debit card, adult access codes, adult personal identification numbers, digital certificate that verifies age, or any other reasonable measure under available technology. Had a minor gained access to restricted material despite these measures, no liability would attach to the Web publisher.

While COPA was initially passed by the Supreme Court after the Court struck down the CDA, the 2008 Circuit Court of Appeals’ decision that COPA violated the First Amendment was the third time in nearly 10 years of litigation over the law’s constitutionality that the injunction against the law’s enforcement was upheld. The first and second decisions to uphold the injunction were issued in May of 2002 and March of 2003, respectively.

Critics of COPA said that the law did not make clear how to distinguish between sexually explicit internet content and educational web sites, such as those showing young women how to perform self-examinations for breast cancer. While this distinction may be clear-cut to the average person, this was clearly not the case in the eyes of the Supreme Court.

Many campaigns are advocating the protection of online free speech, such as the Blue Ribbon Campaign. It seems that these campaigns are more effective than those working against Internet free speech, because on January 21, 2009, the US Supreme Court refused to hear appeals over the law’s injunction, thereby killing the bill and any chance it had to pass. The Court stated that “there is potential for extraordinary harm and a serious chill upon protected speech had the law gone into effect.”