ACLU v. Mukasey

534 F.3d 181 (3d Cir. 2008), cert. den. 129 S. Ct. 1032 (2009) Previously, 31 F.Supp.2d (E.D.Pa.1999); 217 F. 3d 162 (3d Cir. 2000); Vacated and remanded, 122 S. Ct. 1700 (2002); on remand 323 F.3d 240 (3d Cir. 2003)

  1. Media Coalition's amicus brief in the Third Circuit (October 29, 2007)
  2. Government's brief in the Third Circuit Court of Appeals (September 2007)
  3. Third Circuit Court of Appeals COPA Opinion (July 2008)
  4. U.S. District Court Judge Lowell Reed's final adjudication
  5. The Supreme Court Decision barring enforcement of COPA and remanding it to District Court
  6. Remand Amicus Brief
  7. Amicus Brief in COPA
  8. Judge Garth's Opinion
  9. ACLU Brief on Remand
  10. The Supreme Court decision sending COPA back to the lower court
  11. Plaintiff's brief in the U.S. Supreme Court
  12. Appellate Amicus: Brief
  13. Appellate Amicus: Cover
  14. Judge Reed's order granting Preliminary Injunction
  15. Text of the Child Online Protection Act (COPA)

Most recent news: January 21, 2009, the Supreme Court denied the government's petition for certiorari, leaving in place the decision of the Third Circuit Court of Appeals that COPA is unconstitutionally vague and overbroad, and that it does not constitute the least restrictive means of protecting children from sexual content on the Internet.

History: This case was originallyl brought in the United States District Court in Philadelphia on October 22, 1998 by a coalition led by the ACLU and including ABFFE, challenging the constitutionality of the Child Online Protection Act  ("COPA"). On November 19, 1998, Judge Lowell A. Reed Jr. issued a temporary restraining order followed by a six-day hearing before Judge Reed in January 1999. 

Prior to the hearing, on January 11, 1999, a media group including Media Coalition members AAP, Freedom to Read Foundation, IDSA (now the ESA), MPAA, NACS, NARM, PBAA, PMA and RIAA filed an amicus brief in support of plaintiffs. On February 1, 1999, Judge Reed granted a preliminary injunction. The government appealed the case to the U.S. Court of Appeals for the Third Circuit. Media Coalition members again filed an amicus brief in support of the plaintiff. The argument was held on November 4, 1999, and the Court, on June 22, 2000, affirmed the granting of the injunction below but based on the inapplicability of the community standards prong of Miller/Ginsberg, rather than the reasons set forth by the lower court. The U.S. filed a petition for rehearing en banc with the Third Circuit, which was denied on September 15, 2000. The U.S. Supreme Court granted the government's petition for certiorari. The case was argued before the Supreme Court on November 28, 2001. 

The U.S. Supreme Court had ruled on May 13, 2002 to remand the case to the Third Circuit to determine whether the statute would ban First Amendment protected speech for adults. The decision, which overturned the appellate court's opinion finding constitutional infirmity with determining community standards on the Internet, was written by Justice Thomas and joined by Justices Rehnquist, O'Connor, Scalia, and Breyer with Justices Kennedy, Souter, and Ginsburg concurring. Justice Stevens dissented.

On March 6, 2003, the U.S. Court of Appeals for the Third Circuit again found COPA unconstitutional. In an opinion by Judge Garth, the Court found the statute vague and overbroad for a number of reasons. The Justice Department filed a petition in April for rehearing and for rehearing en banc, seeking to overturn the decision. In mid-May, the Third Circuit denied the petition. 

The Supreme Court granted certiorari for a second time to consider the Constitutionality of COPA and Media Coalition members joined an amicus brief with the Supreme Court.  On June 29, the Supreme Court upheld the preliminary injunction barring enforcement of the statute.  It did not, however, declare the law unconstitutional. Instead, the case was sent back to the District Court for a trial to find whether the law was the least restrictive means of protecting children from Internet pornography, or if Internet filters or other technology can provide the same protections for children while maintaining the First Amendment rights of adults. The trial took place over four weeks in October of 2006. Much of the trial focused on the technical aspects of how the Internet works.

On March 22, 2007, the U.S. District Court in Philadelphia again struck down the law. In an opinion by U.S. District Court Judge Lowell Reed, Jr, the court found that: "(1) COPA is not narrowly tailored to the compelling interest of Congress; (2) defendant has failed to meet his burden of showing that COPA is the least restrictive and most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad."

The government appealed the ruling and on September 17, 2007 the government filed a brief in the Third Circuit Court of Appeals in their appeal of Judge Reed's ruling. On October 29, 2007, Media Coalition members and a large group of amici including journalism and technology groups submitted an amicus brief in the Third Circuit Court of Appeals addressing First Amendment concerns and technological alternatives to the law. The government filed a reply and the hearing was held on June 10, 2008.

On July 22, 2008, a three-judge panel of the Third Circuit Court of Appeals issued a unanimous opinion affirming the District Court and holding the Child Online Protection Act unconstitutional. The court also confirmed in its opinion that COPA would not apply to websites outside the U.S., an argument made by the Justice Department.

On September 4, 2008, the government filed a motion for rehearing and rehearing en banc.  The rehearing motion was denied and on October 29, 2008, the U.S. filed a petiton for certiorari with the U.S. Supreme Court.

On January 21, 2009, the Supreme Court denied certiorari, leaving in place the decision of the Third Circuit Court of Appeals holding that COPA is unconstitutional.

updated 4/3/09