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For the second time, a federal appeals court in Philadelphia has declared the Child Online Protection Act unconstitutional, finding that it suffers from a series of fatal flaws because it was not “narrowly tailored” to avoid infringing on the free speech rights of adults. In its prior decision in ACLU v. Ashcroft, the 3rd U.S. Circuit Court of Appeals held that COPA was flawed because it calls for Internet content to be judged on “community standards” and would therefore “subject Internet providers in even the most tolerant communities to the decency standards of the most puritanical.” The U.S. Supreme Court reversed, finding that the single flaw identified by the 3rd Circuit was not enough to doom the law. Justice Clarence Thomas found that “COPA’s reliance on community standards to identify material that is ‘harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment.” Now the 3rd Circuit has reached the same result again with an opinion that finds COPA suffers from multiple, incurable flaws. Writing for the court, Senior 3rd Circuit Judge Leonard I. Garth found that COPA fails the strict scrutiny test because the definitions of key terms and provisions in the statute were not narrowly tailored. “While COPA penalizes publishers for making available improper material for minors, at the same time it impermissibly burdens a wide range of speech and exhibits otherwise protected for adults,” Garth wrote in an opinion joined by 3rd Circuit Judges Theodore A. McKee and Robert E. Cowen. Garth found that the term “minor,” as Congress drafted it in COPA, “applies in a literal sense to an infant, a 5-year-old, or a person just shy of age 17.” As a result, Garth said, Internet publishers who want to know if their sites will run afoul of COPA “cannot tell which of these ‘minors’ should be considered in deciding the particular content of their Internet postings.” Instead, Garth said, such publishers “must guess at which minor should be considered” when deciding whether the content of their sites have any “serious value” for those minors. Those same publishers, Garth said, would find it difficult to comply with COPA’s “harmful to minors” definition because they “must guess at the potential audience of minors and their ages so that the publishers can refrain from posting material that will trigger the prurient interest, or be patently offensive.” Justice Department lawyers argued that the term “minors” should be read to apply only to “normal, older adolescents.” Garth disagreed, saying Congress clearly intended for the law to protect younger children, too, but that the law would fail even under the government’s proposed narrowing of the term. “Regardless of what the lower end of the range of relevant minors is, Web publishers would face great uncertainty in deciding what minor could be exposed to its publication, so that a publisher could predict, and guard against, potential liability. Even if the statutory meaning of ‘minor’ were limited to minors between the ages of 13 and 17, Web publishers would still face too much uncertitude as to the nature of material that COPA proscribes,” Garth wrote. Garth found that COPA was passed after the U.S. Supreme Court struck down the Communications Decency Act, and that Congress was trying to cure the problems that the high court identified in the CDA. As a result, COPA is “somewhat narrower” than the CDA, Garth said. Notably, Garth said, COPA is limited to those who “knowingly” publish material that is “harmful to minors” on the World Wide Web and for a “commercial” purpose. By limiting its scope to the Web, Garth said, COPA avoided targeting other methods of Internet communication, such as e-mail and newsgroups. But Garth found that COPA wasn’t limited enough since its definitions of “commercial” and “harmful to minors” weren’t narrowly tailored. “Because COPA’s definition of harmful material is explicitly focused on minors, it automatically impacts non-obscene, sexually suggestive speech that is otherwise protected for adults,” Garth wrote. Garth also found that COPA calls for individual pieces of Internet content — such as a single photograph — to be judged “in isolation.” “While COPA does not define what is intended to be judged ‘as a whole,’ the plain language of COPA’s ‘harmful material’ definition describes such material as ‘any communication, picture, image file, article, recording, writing, or other matter of any kind’ that satisfies the three prongs of the ‘material harmful to minors’ test: prurient interest, patently offensive, and serious value,” Garth wrote. In using such language, Garth said, “Congress had to mean that each individual communication, picture, image, exhibit, etc. be deemed ‘a whole’ by itself in determining whether it appeals to the prurient interests of minors, because that is the unmistakable manner in which the statute is drawn.” As a result, Garth concluded that “the plain meaning of COPA’s text mandates evaluation of an exhibit on the Internet in isolation, rather than in context. As such, COPA’s taken ‘as a whole’ definition surely fails to meet the strictures of the First Amendment.” Such a law, Garth said, cannot be considered narrowly tailored. “For example, one sexual image, which COPA may proscribe as harmful material, might not be deemed to appeal to the prurient interest of minors if it were to be viewed in the context of an entire collection of Renaissance artwork. However, evaluating just that one image or picture or writing by itself rules out a context which may have alleviated its prurient appeal,” Garth wrote. “As a result,” Garth wrote, “individual communications that may be an integral part of an entirely non-prurient presentation may be held to violate COPA, despite the fact that a completely different result would obtain if the entire context in which the picture or communication was evaluated ‘as a whole.’” Garth also found that Congress failed to narrow the law’s reach by limiting its scope to those who communicate “for commercial purposes.” “COPA’s definitions subject too wide a range of Web publishers to potential liability,” Garth wrote. Senior U.S. District Judge Lowell A. Reed of the Eastern District of Pennsylvania, who granted the original injunction that barred COPA from going into effect, found there was nothing in the statute “that limits its applicability to so-called commercial pornographers only.” Garth agreed, saying, “indeed, as we read COPA, it extends to any Web publisher who makes any communication ‘for commercial purposes.’” Garth found that COPA includes a “broad definition” of the term “engaged in the business,” that would effectively apply to any Web publishers who have posted any material that is “harmful to minors” on their Web sites — even if they do not make a profit from such material itself or do not post such material as the principal part of their business. And COPA’s definition of the term “commercial purposes” would further expand the law’s reach beyond those that sell goods or services to include even those who merely sell advertising space on an otherwise non-commercial site. “The ‘engaged in the business’ definition would encompass both the commercial pornographer who profits from his or her online traffic, as well as the Web publisher who provides free content on his or her Web site and seeks advertising revenue, perhaps only to defray the cost of maintaining the Web site,” Garth wrote. AFFIRMATIVE DEFENSES ALSO FLAWED Garth also rejected the government’s argument that COPA’s affirmative defenses saved the law by allowing Web publishers to take simple steps to restrict access to adults, such as requiring a credit card. Adults, too, would be turned away from such sites, Garth found, even though the content is perfectly legal for adult consumption. “COPA will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial,” Garth wrote. “People may fear to transmit their personal information, and may also fear that their personal, identifying information will be collected and stored in the records of various Web sites or providers of adult identification numbers.” Garth found that the U.S. Supreme Court has rejected restrictions that require recipients to identify themselves before being granted access to disfavored speech “because such restrictions can have an impermissible chilling effect on those would-be recipients.”

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