In a victory for online free speech, the U.S. Supreme Court today refused to hear the government's appeal of a July 2008 ruling holding the Child Online Protection Act of 1998 (COPA) unconstitutional and enjoining COPA's enforcement. The case was brought by the ACLU, EFF, and a coalition of plaintiffs.
Today's decision marks the end of the road for COPA, a federal law that violated the First Amendment by imposing civil and criminal penalties on commercial website operators that publish sexually explicit material without also using credit card authentication or other technological measures to verify viewer age and block access by minors.
Had the high court accepted the government's appeal, it would have been COPA's third Supreme Court appearance. The U.S. Court of Appeals for the Third Circuit found COPA unconstitutional three times — most recently last summer, when it affirmed [PDF] a district court's decision [PDF] enjoining enforcement of COPA. The Supreme Court had accepted the government's two previous appeals, issuing rulings in 2002 and 2004 without ever permitting COPA to be enforced.
COPA was passed after the Supreme Court struck down its predecessor, the Communications Decency Act of 1996 (CDA), in its landmark decision ACLU v. Reno, the first Supreme Court case to apply the First Amendment to online speech.
The fight over the CDA and COPA is almost as old as EFF itself, and was the original focus of one of our longest-running activism efforts, the Blue Ribbon Campaign to protect free speech online. The COPA litigation also was responsible for government subpoenas aimed at search engines, one of which resulted in the Gonzales v. Google case.