PHILADELPHIA, PA – A three-judge panel of the U.S. Court of Appeals for the Third Circuit on Tuesday upheld repeated previous rulings that the Child Online Protection Act constitutes unconstitutional censorship of speech on the internet. Consequently, the law remains permanently enjoined.In upholding the ban on COPA, the court affirmed the law is unconstitutional because it is not tailored to advance the government’s interest in protecting children; there are less restrictive, equally effective alternatives to COPA (like filtering), and COPA is unconstitutionally overbroad and vague.

COPA “cannot withstand a strict scrutiny, vagueness or overbreadth analysis and thus is unconstitutional,” the panel wrote in its opinion.

The ruling came as no surprise to attorneys familiar with the adult entertainment industry, which has decried the law’s prohibition of “commercial speech” that might be considered “harmful to minors.”

“It’s about time” COPA was laid to rest once and for all, said attorney Robert Apgood, who specializes in statutory interpretation. “Now I wish every other circuit would just fall right in line. COPA was blatantly overbroad.”

For Apgood and others who deal with the adult Web, a primary issue was COPA’s seeming desire to “dumb down” the internet to a level that would be appropriate for the youngest user.

Apgood said he was especially pleased about the court’s “strict interpretation” of the law and the First Amendment.

“I’m starting to notice a small pattern within the district courts and the Supreme Court,” he said. “We seem to have a group of strict constructionists on the bench now, and they’re upholding a strict interpretation of the law.”

Apgood also said he does not expect the government to appeal the Third Circuit’s ruling to the U.S. Supreme Court.

“Unless there’s a blatant, inflammatory, cut-and-dried constitutional issue, the Supremes probably won’t grant certiorari,” he opined. “I don’t think this case has that component.”

Attorney and author Fred Lane said he’s not so sure about that. Although he said the administration would need to do some fancy footwork in order to ensure the case passed before the Supremes within the next year — and before any current justices retire — that is a more likely path for a challenge to the Third Circuit’s decision than requesting an en banc hearing or attempting to rush a more judicially acceptable version of the law through a Democratic congress.

“The government’s best shot is to go straight to the Supreme Court, but it’s pretty unlikely they would be able to get this before the justices within the next year,” he said. “With an election looming and the Democrats in control of Congress, the administration is not going to get a new law out of Congress.”

First Amendment attorney and Free Speech Coalition chairman Jeffrey Douglas, who called the Third Circuit’s ruling “an extraordinary opinion; a truly great opinion,” disagreed.

“I doubt Congress will allow this to end,” he said. “I think they’ll try again. COPA has never been declared constitutional — it’s never even been a close call — but [members of Congress] don’t care. They don’t care if 12-year-olds are looking at porn on the internet. They just want the 12-year-olds’ parents to vote for them.

“I’m sure they’ll try again, and I’m sure they’ll fail.”

For Lane — who was hired by prosecutors in 1998 to “explain to them how the Web works” before the first round of legal challenges to COPA — the matter of most import about the Third Circuit’s decision is that the panel ruled on fact, not a judicial interpretation of COPA. Central to the court’s finding, he said, was “content-restrictive laws must be as narrowly tailored as possible to achieve the objective. COPA isn’t narrowly tailored at all.”

The first thing about the decision that stood out to Douglas was that it “comprehensively touches on every component of COPA. The judges wrote this opinion specifically intending to avoid a Supreme Court review. Therefore, there’s a substantial chance the Supreme Court will not even consider it. Essentially, this opinion says ‘there’s nothing new to discuss here.’”

Douglas said among the most phenomenal aspects of the Third Circuit’s decision is that the judges were specific about COPA’s inappropriate attempt to treat all minors the same regardless of their ages. Attempting to hold website administrators criminally liable for exposing 17-year-olds and 8-year-olds to the same content — despite the notion of potential “harm” being very different between the age groups — is “overbroad and vague,” the court ruled.

“Many times that issue gets swept under the rug,” Douglas said.

In addition, Douglas found the ruling to be auspicious for the adult industry where future obscenity prosecutions are concerned. The Third Circuit’s ruling, he noted, “addressed the impropriety of prosecuting [online content distributors] for individual images instead of the website taken as a whole.” What Douglas referred to as “cherry picking” of individual images for prosecution has been an issue in several recent obscenity cases, he said, notably the one in which Max Hardcore was convicted in June based in part on individual pieces of content displayed on his website.

“Because it’s COPA, it doesn’t apply directly to obscenity,” but a federal appellate court’s definition of “taken as a whole” vis-à-vis websites should prove helpful in Hardcore’s appeal, Douglas said.

COPA, which required website administrators to restrict access to vast amounts of constitutionally protected speech on the grounds it might be “harmful to minors,” has a long and contentious history. Often referred to as “the bastard child of the Communications Decency Act of 1996,” COPA was signed into law by President Bill Clinton in 1998 as a sort of congressional end-run around indecency provisions struck from the CDA by the Supreme Court in 1997. COPA was challenged as soon as it hit the bricks, and it has bounced around between district and appellate courts and the Supreme Court ever since. Since 1998, federal courts have issued seven separate legal opinions finding very serious constitutional problems with the law.

A federal district court and a federal appeals court found COPA violates the First and Fifth Amendments. The Supreme Court upheld that decision, effectively banning enforcement of the law in June 2004 and sending the case back to the district court. The district court’s duty at that point was to determine whether any commercially available filtering technology could be more effective than the law at achieving the stated goal of “protecting children.”

In March 2007, a district judge once again struck down COPA. The government appealed again, and that’s what led to the law’s appearance before the Third Circuit again and the circuit court’s second ruling, which affirms its prior ruling.

Had COPA been allowed to stand, it would have criminalized speech that is legal for adults under the First Amendment but potentially “harmful to minors.” Penalties for violating the law included fines up to $50,000 per day and as many as six months in prison.

“For years the government has been trying to thwart freedom of speech on the internet, and for years the courts have been finding the attempts unconstitutional,” American Civil Liberties Union Senior Staff Attorney Chris Hansen said in a prepared statement about the decision. The ACLU was one of the plaintiffs in the case before the Third Circuit. “The government has no more right to censor the internet than it does books and magazines.”

The Center for Democracy & Technology, which submitted amicus briefs in many of the cases, also was pleased with the Third Circuit’s ruling.

“Throughout the history of legal challenges to COPA, we have argued that the most effective way to protect children online, and the means least restrictive of free expression, is to give families the resources to control what their children see and do online,” CDT General Counsel John Morris said in a prepared statement. “This empowers parents, respects the First Amendment and acknowledges the diverse sensibilities of American families.

“In defending COPA, and earlier the 1996 Communications Decency Act which was struck down by the Supreme Court in 1997, Congress has spent twelve years attempting to use criminal laws to censor protected online speech on the internet that is lawful for adults to access. That approach to protect children online has been an utter failure,” the CDT statement continued.

Lane said he agrees.

“For the past 10 years I’ve been arguing that the ‘community standards of decency’ [prescribed by the Miller Test for obscenity] should be determined by the household — not the city, not the state and certainly not the country as a whole,” he said.