Ashcroft v. American Civil Liberties Union (II)
542 U.S. 656 (2004)
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Rule of Law:
When the government defends a content-based speech restriction, it bears the burden of proving that proposed plausible and less restrictive alternatives are less effective than the challenged statute. A failure to meet this burden means the restriction is likely unconstitutional under the First Amendment.
Facts:
- Congress enacted the Child Online Protection Act (COPA), making it a federal crime to knowingly post content 'harmful to minors' on the World Wide Web for commercial purposes.
- COPA defined 'harmful to minors' using a three-part test based on contemporary community standards, patently offensive depictions of sexual material, and a lack of serious value for minors.
- The statute applied to entities that create such communications as a regular course of business with the objective of earning a profit.
- COPA provided an affirmative defense to prosecution if a website owner restricted access to adult material by requiring a credit card, adult access code, or other reasonable age-verification measures.
- The law imposed severe criminal penalties, including fines up to $50,000 and six months in prison for each violation.
- At the time, user-empowerment tools, such as blocking and filtering software, were available for parents to install on their own computers to prevent children from accessing certain websites.
- A significant amount of online content deemed 'harmful to minors' originated from foreign countries, placing it beyond the jurisdictional reach of COPA.
Procedural Posture:
- The American Civil Liberties Union and other Internet content providers sued the Attorney General in the U.S. District Court for the Eastern District of Pennsylvania, seeking to enjoin enforcement of COPA.
- The District Court granted a preliminary injunction, concluding the plaintiffs were likely to succeed on the merits because less restrictive alternatives to COPA existed.
- The Government appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the injunction but on the different ground that COPA's 'community standards' provision was unconstitutionally overbroad.
- The U.S. Supreme Court granted certiorari, reversed the Third Circuit's 'community standards' reasoning, and remanded the case for further proceedings (Ashcroft I).
- On remand, the Third Circuit again affirmed the preliminary injunction, this time holding that the statute was not the least restrictive means to protect children.
- The U.S. Supreme Court granted certiorari for a second time to review the Third Circuit's decision.
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Issue:
Does the Child Online Protection Act (COPA) likely violate the First Amendment because the government failed to prove it is the least restrictive means of achieving its compelling interest in protecting minors from sexually explicit material on the internet?
Opinions:
Majority - Justice Kennedy
Yes. The Child Online Protection Act likely violates the First Amendment because the government has not met its burden of showing it is the least restrictive means available to protect minors. Content-based speech restrictions are presumptively invalid and subject to strict scrutiny, requiring the government to prove that less restrictive alternatives are not as effective. In this case, plausible alternatives like filtering software exist, which are less restrictive because they place control at the receiving end with the user, rather than imposing a blanket restriction on the speaker at the source. Filtering software may also be more effective, as it can block foreign websites outside of COPA's reach. As the government failed to provide evidence that filtering is less effective than COPA, the preliminary injunction against the statute's enforcement was properly granted.
Concurring - Justice Stevens
Yes. While I join the majority's less-restrictive-means analysis, COPA is also unconstitutional for two additional reasons. First, its reliance on 'contemporary community standards' is unworkable for the global medium of the internet, as it would force all speakers to conform to the standards of the most restrictive community. Second, the use of severe criminal penalties to regulate speech that is not obscene creates a profound chilling effect, as speakers may self-censor rather than risk prosecution for crossing a vague and ill-defined line.
Dissenting - Justice Scalia
No. COPA is constitutional because strict scrutiny should not apply to the speech it regulates. The statute targets the commercial pandering of sexually provocative material, which is a form of 'constitutionally unprotected behavior.' Because Congress could ban this 'sordid business' entirely, it certainly has the power to impose the lesser restrictions found in COPA.
Dissenting - Justice Breyer
No. COPA is constitutional because it survives strict scrutiny. The statute is narrowly tailored to cover only a small category of speech bordering on obscenity and imposes only a modest burden on adults who can use age-verification systems. Filtering software is not a true 'less restrictive alternative' but part of the inadequate status quo that Congress sought to remedy. Filters are flawed—they under-block, over-block, cost money, and depend on parental supervision that is not always possible. The Court should defer to Congress's reasonable conclusion that COPA was necessary to advance the compelling interest of protecting children.
Analysis:
This decision solidifies the demanding nature of the 'least restrictive means' test within First Amendment strict scrutiny analysis, particularly in the context of internet regulation. By placing the evidentiary burden squarely on the government to disprove the effectiveness of alternatives, the Court made it significantly more difficult to enact broad, source-based content restrictions online. The ruling champions user-empowerment tools like filters as a constitutionally preferred alternative to government censorship. The decision also highlights the challenge courts face in applying legal doctrines to rapidly evolving technology, as evidenced by the remand for an updated factual record.
