Ashcroft v. American Civil Liberties Union, 542 U.S. 656; 124 S. Ct. 2783; 159 L. Ed. 2d 690 (2004)

Facts—The Child Online Protection Act (COPA) required commercial Internet postings of sexual material to limit access to minors by requiring use of a credit card, digital certificate, or other reasonable measures. The U.S. Third Circuit affirmed a preliminary injunction against the law. The U.S. Supreme Court decided that the “community standards” language in the statute did not per se make the law invalid, but, on remand, the Third Circuit still concluded that the law was not narrowly tailored to serve a compelling governmental in- terest, was overbroad, and did not use the least-restrictive means available.

Question—Is there sufficient evidence to sustain the preliminary injunction against enforcement of the Child Online Protection Act?

Decision—Yes.

Reasons—J. Kennedy (5–4). COPA is Congress’s second attempt to regulate pornography on the Internet, the Court having invalidated the Communications Decency Act of 1996. The Court will uphold injunctions that are not abuses of discretion. The lower court issued the preliminary injunction because it thought the government could apply less restrictive means. Filters constitute such a means: “They impose selective restrictions on speech at the receiving end, not universal restrictions at the source.” Filters might also be more effective since they apply to the 40 percent of pornography that is produced abroad. The Commission on Child Online Protection so concluded. “[T]he potential harms from reversing the injunction outweigh those of leaving it in place by mistake since the government has yet to launch any prosecutions under the law.” Moreover, “there are substantial factual disputes remaining in the case.” Finally, technology continues to change and has already changed significantly since the law was first adopted.

J. Stevens, concurring, believed that the law’s use of “contemporary community standards” was defective. He further questioned the value of criminal prosecutions in such cases.

J. Scalia, dissenting. Although agreeing with J. Breyer that the law is constitutional, he did not agree that a law dealing with commercial pornography needed to be subjected to strict scrutiny.

J. Breyer, dissenting. The law at issue only seeks to regulate material that is legally defined as pornography, and the law should be so interpreted. The law “does not censor the material it covers. Rather, it requires providers of the ‘harmful to minors’ material to restrict minors’ access to it by verifying age,” which is a relatively modest burden. The least restrictive means test is inappropriate in this case since filtering was the status quo, which Congress found to be unsatisfactory. “It is always true, by definition, that the status quo is less restrictive than a new regulatory law. It is always less restrictive to do nothing than to do something. But ‘doing nothing’ does not address the problem Congress sought to address—namely, that, despite the availability of filtering software, children were still being exposed to harmful material on the Inter- net.” Filtering is faulty, allowing some pornography to get through; filtering is costly; filtering depends on parental enforcement; and filtering is so imprecise that it blocks some valuable material. There is no guarantee that filtering will work, and decriminalizing the law “would make the statute less effective.” The Court has given lower courts inadequate guidelines as to how to proceed next. It would do better to construe the statute narrowly and seek to enforce it.