OLR Research Report

August 10, 2004




By: Susan Price, Principal Analyst

You asked for a summary of Ashcroft v. ACLU, the U.S. Supreme Court decision upholding a lower court's order barring enforcement of the Child Online Protection Act. We include copies of the majority, concurring, and dissenting opinions.


By a five to four margin, the U.S. Supreme Court held that a district court judge did not abuse his discretion in issuing a preliminary injunction against enforcement of the Child Online Protection Act (COPA, 47 U.S.C. Sec. 231). That law imposes a $50,000 fine and imprisonment for up to six months for knowingly posting on the World Wide Web, for commercial purposes, material that is harmful to minors. The Court's rationale was that the plaintiffs were likely to prevail at trial on their argument that there were plausible, less restrictive alternatives to the statute, particularly blocking or filtering software.

Two of the justices in the majority also joined in a concurring opinion, finding other constitutional defects in the law. Of the four justices who dissented, three asserted that the law was the least restrictive alternative because it regulated a very small amount of lawful speech. Justice Scalia dissented separately, arguing that since the commercial pornography covered by COPA could be banned entirely, the law's lesser restrictions raised no constitutional concerns.


COPA imposes criminal penalties for knowingly posting, for commercial purposes, materials on the World Wide Web that are harmful to people under 17. Such materials are defined as any communication, picture, image, graphic image, file, article, recording, writing, or other matter of any kind that is obscene or that:

1. 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;

2. 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

3. taken as a whole, lacks serious literary, artistic, political, or scientific value for minors (Sec. 231(e)(6)).

The law covers people who (1) post on the World Wide Web any material that is harmful to minors and (2) devote time, attention, or labor to it, as a regular course of their trade or business, with the objective of making a profit (Sec. 231(e)(2)).

The act provides an affirmative defense to those who take steps to prevent minors from gaining access to the prohibited materials on their website. A person may escape conviction, but not prosecution, if he demonstrates that he has restricted minors' access by:

1. requiring use of a credit card, debit account, adult access code, or adult personal identification number;

2. accepting a digital certificate that verifies age; or

3. any other reasonable measures that are feasible under available technology (Sec. 231(c)(1)).


Preliminary Injunctions

A preliminary injunction is an order a court issues to stop an action before the court has held a full trial on the merits of the petitioner's claim. Judges cannot issue the order unless the petitioner shows that there is a good chance he will prevail at trial, and that he will suffer some irreparable harm unless an injunction is issued (Doran v. Salem Inn, 422 U.S. 922 (1975)). In this case, the parties agreed the plaintiffs, Internet content providers and other free speech advocates, would be irreparably harmed by COPA's enforcement; thus, the courts focused solely on their likelihood of success at trial.

Reviewing courts will uphold the validity of a preliminary injunction unless they determine that the trial judge abused his discretion in issuing it by relying, in error, on a legal premise or factual findings (Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 336 (1985)).

Content-Based Restrictions on Speech

Content-based restrictions are presumptively invalid (R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992)). The government bears the burden of proving that (1) it has a compelling interest in regulating the speech, (2) the statute is narrowly tailored to serve that interest, and (3) less restrictive alternatives are not available (U.S. v. Playboy Entertainment Group, 529 U.S. 803, 817 (2000)).


Congress enacted COPA in 1999 after the Supreme Court ruled that its predecessor, the Communications Decency Act, violated rights to free speech protected by the U.S. Constitution's First Amendment (Reno v. ACLU, 521 U.S. 844 (1997)). Internet content providers and others concerned with protecting free speech then challenged COPA's constitutionality by filing a suit against the U.S. Attorney General in the U.S. District Court for the Eastern District of Pennsylvania. Among other things, they sought a preliminary injunction against enforcement of the statute. The court granted their request after holding a hearing in which witnesses testified for both sides.

The court concluded that the statute would place a burden on some lawful speech and that it was not apparent that the attorney general could prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors to harmful materials. It noted that the evidentiary record adduced at the hearing showed that blocking or filtering technology could be at least as successful as COPA in restricting access without imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web site operators (ACLU v. Reno, 31 F.Supp.2d 473, 495 (1999)).

The Third Circuit Court of appeals affirmed, but on different grounds. It held that the “community standards” language in COPA by itself rendered the statute unconstitutionally overbroad (217 F.3d 162, 166 (2000)).

The Supreme Court reversed and remanded the case to the appeals court to reconsider whether the district court had correctly granted the preliminary injunction (Ashcroft I, 535 U.S. at 535 (2002)). On remand, the appeals court again affirmed the district court's action. This time, it ruled that COPA was overbroad, not narrowly tailored to serve a compelling governmental interest, and not the least restrictive means available to serve the interest of preventing minors from using the Internet to gain access to materials that are harmful to them (322 F.3d 240, 266-271(2003)). The Supreme Court again granted certiorari.


Justice Kennedy wrote the majority opinion, joined by justices Ginsburg, Souter, Stevens, and Thomas. He determined that the district court did not abuse its discretion in granting the preliminary injunction because the plaintiffs demonstrated that they were likely to prevail on the merits of their claim that COPA is unconstitutional. He accepted the reasoning of the district court and declined to consider the bases the Third Circuit asserted as supporting the lower court's decision.

Kennedy relied principally on prior Court rulings which established that statutes that suppress a large amount of speech that adults have a constitutional right to receive and communicate to other adults are unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve (Reno v. ACLU, 521 U.S. 844, 874 (1997)). When plaintiffs challenge content-based speech restrictions such as COPA's, the government must prove that proposed alternatives will not be as effective as the challenged statute.

The Court agreed with petitioners' claim that filters appear to be a less restrictive alternative to COPA and found the government had not shown it would be likely to disprove this contention at trial. It reasoned that selective restrictions on speech at the receiving end, not universal restrictions at the source, are preferable. Promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated or much diminished. The Court also cited practical considerations for upholding the injunction, such as significant chilling of lawful speech if COPA were enforced before the case was tried. It also noted the evidence in the record before the Court was at least five years old and that the parties should present evidence of subsequent changes in computer technology to the district court on remand.


Justice Stevens, joined by Justice Ginsburg, wrote a concurring opinion. While he agreed with the majority's conclusion that encouraging deployment of user-based controls would serve Congress' interest in protecting minors from sexually explicit Internet materials, he argued that COPA had other constitutional defects. First, he asserted that the law's use of “contemporary community standards” to identify materials that are harmful to minors was problematic when applied to Internet transmissions. In his view, this standard might make it a crime to post on the World Wide Web materials offensive only to a puritan village. He also argued that attaching criminal sanctions to a mistaken judgment about the contours of the nebulous category of “harmful to minors” speech imposes too heavy a burden on the exercise of First Amendment freedoms.


Dissenting Justice Breyer, joined by the chief justice and Justice O'Connor, argued that the filtering software that is presently available does not adequately protect children from exposure to commercial pornography. He maintained that it (1) lacks precision, allowing some objectionable material to pass through, while blocking a great deal of valuable material; (2) is more expensive for users than age screening; and (3) depends on parents willing to decide where their children will surf the Web and able to enforce that decision.

Breyer also disagreed with the majority's contention that COPA regulates a large amount of speech that adults can lawfully communicate to one another. In his view, only a very small amount of sexually explicit speech would appeal exclusively to a minor's prurient interests; most would also appeal to adults and thus be covered by existing obscenity laws. He concluded that COPA was the least restrictive alternative because of the relatively light burden it placed on constitutionally protected speech and inadequacy of filtering technology to protect minors from harmful materials.