CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 03-218. Argued March 2, 2004--Decided June 29, 2004

To protect minors from exposure to sexually explicit materials on the Internet, Congress enacted the Child Online Protection Act (COPA), 47 U. S. C. §231, which, among other things, imposes a $50,000 fine and 6 months in prison for the knowing posting, for "commercial purposes," of World Wide Web content that is "harmful to minors," but provides an affirmative defense to commercial Web speakers who restrict access to prohibited materials by "requiring use of a credit card" or "any other reasonable measures that are feasible under available technology," §231(c)(1). COPA was enacted in response to Reno v. American Civil Liberties Union, 521 U. S. 844, in which this Court held that the Communications Decency Act of 1996, Congress' first attempt to make the Internet safe for minors by criminalizing certain Internet speech, was unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available. Respondents, Web speakers and others concerned with protecting the freedom of speech, filed suit for a preliminary injunction against COPA's enforcement. After considering testimony presented by both respondents and the Government, the District Court granted the preliminary injunction, concluding that respondents were likely to prevail on their argument that there were less restrictive alternatives to COPA, particularly blocking or filtering technology. The Third Circuit affirmed on different grounds, but this Court reversed, Ashcroft v. American Civil Liberties Union, 535 U. S. 564. On remand, the Third Circuit again affirmed, concluding, inter alia, that COPA was not the least restrictive means available for the Government to serve the interest of preventing minors from using the Internet to gain access to harmful materials.

Held: The Third Circuit was correct to affirm the District Court's ruling that enforcement of COPA should be enjoined because the statute likely violates the First Amendment. Pp. 6-15.

Full Text of Opinion