Supreme Court and COPA

Summary of Supreme Court Decision on the Constitutionality of COPA

Ashcroft v. ACLU

On May 13, the Supreme Court issued its decision in Ashcroft v. ACLU, the ACLU’s challenge to the Child Online Protection Act (COPA). The decision was complex and fragmented, so we have developed this document to clarify exactly what the Court did and did not decide. The thrust of the ruling can be summarized in four points:

• NO PORTION of the law was upheld. Contrary to many newspaper headlines, no part of COPA was upheld by a majority of the court. In fact, not a single justice voted to uphold any part of the law at this point in the case.
• The entire statute remains enjoined. The federal government may not prosecute anyone under the law, pending further rulings by the courts. Since the statute is not in effect, web publishers and others do not need to worry about complying or feel compelled to hold back on any form of protected expression.
• The Court did NOT approve the application of the most restrictive community’s standards to Internet speech. A majority of the Court left the “community standards” issue – whether everyone must comply with the standards of the strictest community in the nation – unresolved. Only three justices (Justices Clarence Thomas and Anthony Scalia, and Chief Justice William Rehnquist) agreed that requiring web publishers to abide by different community standards would not violate the First Amendment.
• A majority of the court only agreed on two points. The ONLY points agreed to by a majority of the court were: 1) the injunction against enforcing the law should remain in place, and 2) the case should be sent back down to the appeals court to decide whether COPA is unconstitutional on a variety of other grounds.

What happens next?The Supreme Court sent the decision back to the Third Circuit, which in the next few months will do one of two things:

1. Issue another decision. The Appeals Court could issue another decision based on the the record of the case to date and taking into account the Supreme Court’s opinion.
2. Send the case back to the trial court. The Appeals Court could also send the case back to the trial court for a full trial. That is an option because the trial court only issued a preliminary injunction against enforcement of COPA (based on a judgment that COPA was likely unconstitutional). It was the validity of that preliminary injunction that first the Appeals Court and then the Supreme Court technically ruled upon in the recent decision. After a full trial, the trial court would decide whether to issue a permanent injunction against COPA because it is unconstitutional. That decision could be appealed again to the Third Circuit and ultimately to the Supreme Court.

The ACLU’s press release on the Court’s decision is online here Return to Ashcroft v. ACLU Feature Page