3rd Circuit: Child Online Protection Act facially violates First and Fifth Amendments

The AP reports: Court affirms online content law unconstitutional.

The third circuit has ruled in ACLU v. Mukasey, No. 07-2539 (3rd Cir. July 22, 2008). Some opinion excerpts:

This matter comes on before this Court on an appeal from an order of the District Court entered March 22, 2007, finding that the Child Online Protection Act (“COPA”), 47 U.S.C. § 231, facially violates the First and Fifth Amendments of the Constitution and permanently enjoining the Attorney General from enforcing COPA. The Government challenges the District Court’s conclusions that: (1) COPA is not narrowly tailored to advance the Government’s compelling interest in protecting children from harmful material on the World Wide Web (“Web”); (2) there are less restrictive, equally effective alternatives to COPA; and (3) COPA is impermissibly overbroad and vague. We will affirm . . .

COPA provides for civil and criminal penalties – including up to six months imprisonment – for anyone who knowingly posts “material that is harmful to minors” on the Web “for commercial purposes.” 47 U.S.C. § 231(a)(1). “Intentional” violations result in heavier fines. Id. at § 231(a)(2). “[M]aterial that is harmful to minors” includes any communication that is obscene or that:

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors . . .

A Web publisher can assert an affirmative defense to prosecution under COPA if he or she: has restricted access by minors to material that is harmful to minors – (A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology. Id. at § 231(c)(1).