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John D. Ashcroft v. American Civil Liberties Union

    Brief Fact Summary. Internet content providers and civil liberties groups sued United States Attorney General, claiming that Child Online Protection Act (COPA) violated their First Amendment rights.  They are seeking preliminary injunction of enforcement.

    Synopsis of Rule of Law. When there is a challenge on a content-based speech restriction under First Amendment, the burden of proof is on the government to prove that proposed alternatives will not be as effective as challenged statute.

    Facts. Congress passed the Child Online Protection Act (COPA) to avert minors from having access to pornography on the internet. The American Civil Liberties Union (ACLU) and online publishers sued in federal court to prevent enforcement of the act, arguing that it violated the Free Speech clause of the First Amendment. The District Court agreed. On appeal, a Third Circuit Court of Appeals panel affirmed, the Court held that because the act used "community standards" to determine which material was harmful to minors, it would bar material that was offensive in the most "puritanical" communities from being displayed in more "tolerant" ones.

    Issue. Whether the Child Online Protection Act's requirements violate the First Amendment by restricting speech and also violates the First Amendment by using a method that is not least restrictive? 

    Held.  Whether the Child Online Protection Act's requirements violate the First Amendment by restricting speech and also violates the First Amendment by using a method that is not least restrictive? 
    Held:  Yes. The Court held that Internet content providers and civil liberties groups were likely to prevail on the claim that COPA violated First Amendment by burdening adults’ access to some protected speech.  Affirmed and remanded.  Justice Anthony Kennedy, in the majority opinion, wrote that the district court's injunction "was not an abuse of discretion, because on this record there are a number of plausible, less restrictive alternatives to the statute." The majority also emphasized that barring the statute's enforcement during the trial would be less harmful than allowing it, because allowing it would be likely to prevent online publishers from publishing certain material. The Supreme Court ruled that the "community standards" provision alone did not make the act unconstitutional and sent the case back to the Third Circuit.  Upon revision, the Third Circuit again prohibited implementation of the act, holding that it was likely to fail the "strict scrutiny" test due to the fact that it was not narrowly tailored – that is, it prevented online publishers from publishing some material that adults had a right to access – and because it did not use the least restrictive means possible to protect children (the court found that blocking software installed on home computers by parents would do as good a job without preventing free speech). For similar reasons, the panel found that the act was unconstitutionally "overbroad" – that is, it applied to too much protected material.

    Discussion. When determining whether alternatives would be as effective as a content-based speech restriction, the court first assumes that the certain speech may be regulated and then proceeds to consider what the least restrictive approach is.


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