John D. Ashcroft, Attorney General, Petitioner V. American Civil Liberties Union Et Al. Case Brief

Journalism 3060 / Communication Law & Regulation

July 18, 2016

Case Brief #2

JOHN D. ASHCROFT, ATTORNEY GENERAL, PETITIONER v.

AMERICAN CIVIL LIBERTIES UNION ET AL.

Nature of the Case: Internet content providers and civil liberties groups are seeking preliminary injunction against the Child Online Protection Act, or (COPA). Enforcement of this act violated first amendment right of free speech. While the act had good intentions, the execution was the main issue. If the act would have been implemented, it would have failed the Strict Scrutiny test due to the lack of specific injunctions and the rights of internet content providers to allow certain types of content to adult subscribers that should not come at the expense of protecting minors. By doing so, the online content providers would restrict the rights of adults to view content solely because children should be protected from it. It is a violation of the first amendment to have both protected and unprotected speech censored.

Facts: Congress passed the Child Online Protection Act in 1998 to attempt to prevent minors from accessing online pornography. The American Civil Liberties Union (ACLU) and internet content providers filed suit in the United States District Court for the Eastern District of Pennsylvania arguing that it violated the Free Speech clause of the First Amendment. The District Court agreed with they suit. After an appeal, the Third Circuit Court of Appeals affirmed due to the overbroad language of “community standards” in which to decide harmful material. The case was sent to Supreme Court with ruled that the “community standards” provision did not make COPA unconstitutional and sent the case back to the Third Circuit. The Third Circuit prohibited the implementation of the act due to the probable failure of a strict scrutiny test (because the law was not narrowly tailored and used the least restrictive means possible to protect the children). The Government once again sought review from this Court and the Supreme Court granted certiorari.

Issue: Does the Child Online Protection Act violate the First Amendment by restricting protected speech and does it use a method that is not the least restrictive one available?

Holding & Decision: Yes, the COPA does violate the First Amendment by restricting too much protected speech (5-4). COPA also is not the least restrictive method available and there are other, more effective alternatives to preventing minors. The justice the authored the