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Fight for Online Free Speech Continues - Again

Catherine Crump,
Staff Attorney,
ACLU Speech, Privacy and Technology Project
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September 19, 2007

As expected, the government is appealing the ACLU’s March 2007 victory in the Child Online Protection Act (COPA) case. COPA is an Internet censorship law that makes it a crime to place content deemed “harmful to minors” on the Web unless the content is behind a credit card or age verification screen. Our victory capped off more than eight years of litigation, including two trips to the Supreme Court. The ACLU won at every stage.

But clearly, it’s far from over. We just received the government’s opening brief to the 3rd Circuit Court of Appeals, and even the government admits that it’s got its work cut out for it. It will attempt to argue — again — that COPA’s censoring guidelines are the least speech-restrictive way to keep kids safe from pornography. In other words, the government will argue that this federal law will do a better job keeping smut from your kids than parental guidance and use of Internet filtering software.

The government will also argue that the district court misunderstood the scope of COPA. In the brief, the government argues that what COPA calls “harmful to minors,” should be interpreted as harmful only to older minors, and that what COPA considers “commercial purposes” meant the law was narrowly targeted at commercial pornography web sites. The problem is, the text of COPA contains no such limitations. As the district court concluded, COPA does not distinguish between kindergarteners and teenagers, and the term “commercial” can include any Web site that supports itself through advertising.

The government also disagrees with the district court’s view of the facts presented during the trial. In general, factual determinations are uniquely the job of district courts, which view all witness testimony and are therefore well-positioned to assess credibility. In contrast, appellate courts don’t see the testimony, and are therefore limited in their ability to second guess district courts.

We’ll address these arguments in 30 days with our brief in opposition. Stay tuned!

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