## Facts

- Congress enacted the Child Online Protection Act (COPA) to criminalize, for commercial websites, knowingly making material “harmful to minors” available on the World Wide Web, with penalties including fines and imprisonment.
- COPA defined “harmful to minors” using a minors-adapted obscenity framework and “contemporary community standards,” and contemplated age-verification measures (e.g., credit cards or adult access codes).
- The ACLU and other online speakers and publishers filed a facial First Amendment challenge and obtained preliminary injunctive relief blocking enforcement.
- After prior appellate and Supreme Court proceedings, the case returned for a full trial on the merits; the district court entered a permanent injunction, holding COPA unconstitutional.
- The government appealed the permanent injunction to the Third Circuit.

## Issues

1. Whether COPA’s content-based criminal restrictions on Internet speech protected for adults survive strict scrutiny under the First Amendment.
2. Whether less restrictive and effective alternatives—particularly user-controlled filtering and blocking software—defeat COPA’s claim to be narrowly tailored.
3. Whether COPA’s definitions and operational terms are so broad or unclear that they chill protected speech and contribute to unconstitutional overbreadth and vagueness.

## Decision

- The Third Circuit affirmed the district court’s permanent injunction and held COPA facially unconstitutional under the First Amendment.
- The court recognized protecting minors from harmful sexual material online as a compelling governmental interest.
- Applying strict scrutiny, the court concluded COPA was not the least restrictive means because filtering and blocking software constituted a less speech-restrictive and more effective alternative.
- The court agreed COPA would likely burden substantial protected adult speech and create an acute chilling effect given criminal penalties and uncertain application.
- The court credited findings that COPA’s limited reach (commercial web content only; not foreign sites or many other online channels) undermined its effectiveness, further supporting invalidation.

## Legal Principles

- Content-based restrictions on speech protected for adults are subject to strict scrutiny and must be narrowly tailored to achieve a compelling interest using the least restrictive effective means.
- A statute regulating online speech fails strict scrutiny where user-controlled filtering provides a less restrictive and comparably or more effective method of protecting minors.
- Criminal penalties heighten First Amendment concerns because ambiguous or broad standards can cause speakers to self-censor lawful expression.
- Overbreadth is substantial where regulation aimed at minors meaningfully restricts adults’ access to protected speech or pressures speakers to conform to the most restrictive community standards.

## Conclusion

The Third Circuit held that COPA’s content-based criminal regulation of web speech, though aimed at a compelling interest, was not narrowly tailored because filtering tools were less restrictive and more effective, and COPA’s breadth and uncertainty risked chilling protected adult expression; the permanent injunction against enforcement was therefore affirmed.


Am. Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008)