ACLU v. Gonzales

Citation
American Civil Liberties Union v. Gonzales, 478 F.Supp.2d 775 (E.D. Pa. 2007) (full-text), aff'd sub nom. American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008) (full-text), ''cert. denied,'' __ U.S. __, 129 S. Ct. 1032 (Jan. 21, 2009).

Factual Background
In 1998, Congress passed the Child Online Protection Act, criminalizing speech that, "taken as a whole," appeals to "the prurient interest," that depicts sexual contact, and that "lacks serious literary, artistic, political, or scientific value for minors." The statute defines minors are persons aged sixteen and younger. The law applies to those content providers that spend some time or attention trying to earn a profit and that cause the harmful material to be posted online. COPA provides websites with an affirmative defense if they restrict access by minors by requiring the use of a credit card or other means.

Soon after COPA went into effect, the trial court granted a temporary injunction against it, which the U.S. Court of Appeals for the Third Circuit upheld on the ground that language about "community standards" rendered COPA overbroad. The Supreme Court reversed and remanded, but the Third Circuit struck down the law on a slew of other grounds. The Supreme Court upheld this decision, but directed the trial court to try the case on the merits and find facts regarding the relative effectiveness of COPA and filtering software.

Trial Court Proceedings
The trial court held that COPA is not narrowly tailored to a compelling government interest because COPA is overinclusive and underinclusive. The court stated that COPA is overinclusive because COPA prohibits much more speech than is necessary to further Congress’ compelling interest due to the broad definitions and provisions of COPA and because COPA applies to speech that is obscene as to all minors from newborns to age sixteen, and not just to speech that is obscene as to older minors. The court also found COPA to be underinclusive because it does not apply to a significant amount of sexually explicit material on the internet which originates from outside of the United States, and thus, COPA is not applicable to a large amount of material that is unsuitable for children which comes from overseas but is nevertheless available to children in the United States. Also, the affirmative defenses do not aid in narrowly tailoring COPA to Congress’ compelling interest because credit cards, debit accounts, adult access codes, and adult personal identification numbers do not in fact verify age. As a result, their use does not, in good faith, restrict access by minors. The trial court also concluded that defendant has failed to show that COPA is the least restrictive alternative for advancing Congress’ compelling interest. Specifically, the government has failed to successfully defend against the plaintiffs’ assertion that filter software and the government’s promotion and support thereof is a less restrictive alternative to COPA. Further, the court held that defendant has failed to show that other alternatives are not as least as effective as COPA. Defendant has failed to show that filters are not at least as effective as COPA at protecting minors from harmful material on the web since the evidence shows that at a minimum, COPA will not reach a substantial amount of foreign source sexually explicit materials on the web, which filters will reach.

The trial court also held that COPA is vague for several reasons. First, the court found COPA to be vague because COPA utilizes two different requirements – “knowingly” and “intentionally” – but does not define either standard. Second, web publishers that are not commercial pornographers will be uncertain as to whether they will face prosecution under the statute, chilling their speech. Third, the definition of “minor” as any person under seventeen years of age creates vagueness in COPA because materials that could have serious literary, artistic, political, or scientific value for a sixteen-year-old would not necessarily have the same value for a three-year-old. Last, COPA’s use of the phrase “as a whole” is vague because it is unclear how the phrase would apply to the web.

The trial court also concluded that COPA is overbroad for several reasons. First, the court determined that the vagueness of the phrases “communication for commercial purposes” and “engaged in the business” means that COPA could apply to a wide swath of the web and thus COPA would prohibit and chill a substantial amount of constitutionally protected speech for adults. Second, since the definition of “minor” includes any person under seventeen, web publishers do not have fair notice regarding what they can place on the web that will not be considered harmful to any minor, and thus, the definition of “minor” renders COPA overinclusive because it broadens the statute to encompass a large array of protected speech. Third, because the statute does not reference commercial pornographers, the court found that it could not read such a limitation into the statute to save it form being overbroad.

Appellate Court Proceedings
The appellate court affirmed the district court. The appellate court also reiterated several points it made in ACLU II, which bound ACLU III because of "law of the case" theory, which holds that a court must follow the conclusions it has already made in the same case. Specifically, the appellate court held that COPA’s definition of "minors" (which includes three-year-olds and sixteen-year-olds, to whom different things will be harmful), its definition of "commercial purposes," and its affirmative defenses are not sufficiently narrowly-tailored to survive strict scrutiny, that COPA is unconstitutionally vague, since providers cannot know if they will be punished for posting content that would be harmful to young children but not to high-schoolers, and that COPA is unconstitutionally overbroad by reaching lots of protected speech.