Child Online Privacy Act Is Unconstitutional

As widely anticipated, a federal judge has found the 1998 Child Online Privacy Act (COPA) violates the First and Fifth Amendments of the Constitution.

U.S. District Court Judge Lowell A. Reed Jr. found that the Act, which attempts to protect children from pornographic Internet sites by making it a crime for Web sites to allow children 17 years and younger to access materials “harmful to minors,” is not narrowly tailored to protect children and that the statute is vague and overbroad. The Court applied a “strict scrutiny” review to the statute.

The judge found it suppresses “a large amount of speech that adults have a constitutional right to receive.” The court said the statute is under-inclusive since a large portion of Internet porn comes from sites located outside the United States. “I agree with Congress that its goal of protecting children from sexually explicit materials on the Web deemed harmful to them is especially crucial,” the opinion stated. “However, I am acutely aware of my charge under the law to uphold the principles found in our nation’s Constitution and their enforcement throughout the years by the Supreme Court. I may not turn a blind eye to the law in order to attempt to satisfy my urge to protect this nation’s youth by upholding a flawed statute, especially when a more effective and less restrictive alternative is readily available (although I do recognize that filters are neither a panacea nor necessarily found to be the ultimate solution to the problem at hand.)”

The court had earlier granted a temporary injunction that was upheld by the U.S. Supreme Court. In upholding the temporary injunction, the Supreme Court noted that the statute might be found unconstitutional after a full trial.

American Civil Liberties Union v. Alberto Gonzales, U.S. Dist. Court Eastern Dist. Penn. No. 98-5591, decided March 22, 2007.