Ashcroft v. ACLU

Citation: American Civil Liberties Union v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999), aff’d, 217 F.3d 162 (3d Cir. 2000), ''vacated and remanded sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), aff’d on remand, 322 F.3d 240 (3d Cir. 2003), aff’d and remanded, 542 U.S. 656 (2004), on remand,'' American Civil Liberties Union v. Gonzales, 2006 WL 2927284 (E.D. Pa. Oct 11, 2006).

Trial Court Proceedings
The Child Online Protection Act COPA was scheduled to take effect on November 20, 1998, but a coalition of 17 civil liberties groups filed suit challenging it, and, on November 19, Judge Reed of the federal district court in Philadelphia, finding that there was a likelihood that the plaintiffs would prevail, issued a temporary restraining order against enforcement of the law. On February 1, 1999, he issued a preliminary injunction against enforcement pending a trial on the merits. The preliminary injunction applies to all Internet users (not just the plaintiffs in this case) and provides that, even if the law is ultimately upheld, the Administration may not prosecute online speakers retroactively.

On June 22, 2000, the U.S. Court of Appeals for the Third Circuit upheld the preliminary injunction, as it was “confident that the ACLU’s attack on COPA’s constitutionality is likely to succeed on the merits.”135

On May 13, 2002, the Supreme Court vacated the Third Circuit’s opinion and remanded the case for further proceedings. It did not, however, remove the preliminary injunction against enforcement of the statute. On March 6, 2003, the Third Circuit again affirmed the district court’s preliminary injunction. Finally, on June 29, 2004, the Supreme Court affirmed the preliminary injunction and remanded the case for trial. We now consider these five opinions in turn. In issuing the preliminary injunction, the district court found that “[i]t is clear that Congress has a compelling interest in the protection of minors, including shielding them from materials that are not obscene by adult standards.”136 It also found, however, that “it is not apparent to this Court that the defendant can meet its burden to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors to this material.”137 This is because “[t]he record before the Court reveals that blocking or filtering technology may be at least as successful as COPA would be in restricting minors’ access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or website operators.”138 In addition, “the sweeping category of forms of content that are prohibited — ‘any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind’ (emphasis added [by the court]) — could have been less restrictive of speech on the Web and more narrowly tailored to Congress’ goal of shielding minors from pornographic teasers if the prohibited forms of content had included, for instances, only pictures, images, or graphic image files, which are typically employed by adult entertainment websites as ‘teasers.’ In addition, perhaps the goals of Congress could be served without the imposition of possibly excessive and serious criminal penalties, including imprisonment and hefty fines, for communicating speech that is protected as to adults or without exposing speakers to prosecution and placing the burden of establishing