PETITIONER: ASHCROFT

RESPONDENT: AMERICAN CIVIL LIBERTIES UNION

SUMMARY 
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 
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.

LEGAL STANDARDS 
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)).
TRIAL COURT DECISION AND APPEALS 
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. 

U.S. SUPREME COURT'S MAJORITY OPINION 

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. 

STEVENS' CONCURRENCE 
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. 
BREYER'S DISSENT 
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.