Federal Judge Lowell Reed Jr. of the Eastern District of PA (wh-hoo!) ruled today that the Child Online Protection Act is unconstitutional under both the First and Fifth Amendment.
COPA had stated:
Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.
Judge Reed found COPA to be too "impermissibly vague and overbroad" to be constitutional, and that there are other less-restrictive means available for protecting children from content deemed inappropriate. In addition, Reed said, the law would "undoubtably chill a substantial amount of constitutionally protected speech for adults." He concluded:
Despite my personal regret at having to set aside yet another attempt to protect our children from harmful material, I restate today, as I stated when granting the preliminary injunction in this case, that "I without hesitation acknowledge the duty imposed on the Court [as Justice Kennedy observed] and the greater good such duty serves. Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."
The Court's opinion in ACLU v Gonzales is here; I'll update this post with excerpts once I've digested it.
edited for more:
Because COPA suppresses a large amount of speech that adults have a constitutional right to receive, under the strict scrutiny standard, COPA may only be upheld as constitutional if defendant meets his burden of proving that COPA is narrowly tailored to the compelling interest that COPA was enacted to serve and there are no less restrictive alternatives that would be at least as effective in achieving that interest....
[T]he definitions of "commercial purposes" and "engaged in the business" apply to an inordinate amount of Internet speech and certainly cover more than just commercial pornographers, contrary to the claim of defendant. Moreover... the fact that 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, also renders COPA over-inclusive. ...
COPA is also underinclusive.... there is a significant amount of sexually explicit material on the Internet which originates from outside of the United States. As discussed below, unlike Internet content filters which are able to block from view unsuitable material regardless of its origin, COPA has no extra-territorial application....
The affirmative defenses cannot cure COPA’s failure to be narrowly tailored because they are effectively unavailable. 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.