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Con Law 101: First Amendment Redux

Catherine Crump,
Staff Attorney,
ACLU Speech, Privacy and Technology Project
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October 28, 2006

A post for non-lawyers who’d like a more detailed understanding of the legal issues in COPA …

The Supreme Court has held that “the First Amendment generally prevents government from proscribing speech, or even expressive conduct because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.”

We argue that COPA, which regulates speech considered “harmful to minors,” is exactly this sort of content-based regulation.

The Supreme Court didn’t hold that content-based regulations are always invalid, just that they are presumptively invalid. The Supreme Court scrutinizes such laws closely, and strikes them down unless they meet several criteria.


– the regulation was implemented for the purpose of advancing a compelling government interest.

– the law is “narrowly tailored.” In other words, it must suppress only the speech that needs to be suppressed to advance the government’s interest. If the law unnecessarily abridges a lot of protected speech, or fails to proscribe a lot of speech that it just as bad as the speech that is criminalized, then it is not “narrowly tailored.”

– the government must establish that there are no less speech-restrictive alternatives to COPA.


– No one disputes that the government has a compelling interest in protecting kids.

– COPA is not narrowly tailored. It criminalizes a wide swath of valuable speech. Salon testified about its fear that were COPA in effect, it couldn’t publish photos of the Abu Ghraib prisoner abuse. Nerve testified that it feared that much of its award-winning photography and journalism would subject the publication to prosecution. Lesbian rapper God-Des testified that she would fear prosecution for distributing her music for free on the Web.

– COPA fails to address a vast amounts of speech. It applies only to United States web sites. COPA will do nothing to protect kids from pornography originating in Japan, the Netherlands, or anywhere else in the world. And COPA applies only to the Web. COPA does not address cover email, Instant Messaging, and peer-to-peer programs such as eDonkey, among others. There are large amounts of pornography easily available through all of these methods of communication.

– At the same time, COPA’s harsh criminal penalties are unnecessary. There are many alternatives to COPA. For example, the government could encourage parents to place Internet filtering technologies on their computers. The government could enforce the obscenity laws.

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