Congress enacted the Child Online Protection Act (COPA) after the Court struck down the Child Decency Act (CDA) in Reno v. ACLU, 521 U.S. 844 (1997). The text of COPA can be found at: 47 U.S.C.S. § 231. In contrast to the CDA, the prior act, COPA:
- Applies only to material displayed on the World Wide Web;
- Covers only communications of material made for commercial purposes; and
- Restricts only “material that is harmful to minors.”
COPA draws upon the obscenity test set out in Miller v. California, 413 U.S. 15 (1973), but revises it with a view to minors. Under the test in COPA, to be obscene, it must be found that:
- The average person applying contemporary community standards would find that the material as a whole would appeal to the prurient interests;
- The material depicts an actual or simulated sexual act in a manner patently offensive to a minor; and
- The material, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
The Court addressed only the issue of whether COPA’s reliance on the community standards test to determine what material is harmful to minors makes the law unconstitutional under the First Amendment. The Court held that the community standards test alone did not make the law unconstitutionally overbroad. Because the Miller test has two parts that do not require the use of community standards, it gives the judge the ability to require by law a more objective finding than a simple arbitrary assessment by the jury.
The Court did not address the issue of whether COPA is unconstitutionally overbroad or vague for other reasons. Nor did it address whether COPA would satisfy strict scrutiny. Instead, the Court sent the case back to the Third Circuit Court of Appeals to examine the other issues of the constitutionality of COPA (only the question of whether the community standards test alone made COPA unconstitutional had been presented to the Supreme Court), and it kept the order preventing the enforcement of the law until the case was resolved in place.
Upon remand, the Third Circuit ruled that COPA was still unconstitutional as a violation of the First Amendment.
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