PHILADELPHIA, PA – Senior U.S. District Judge Lowell Reed Jr. issued his ruling today that the 1998 Child Online Protection Act (COPA) is unconstitutional, declaring that the government had “failed to show that COPA is narrowly tailored to Congress’ compelling interest” and failed to demonstrate that the statute is “the least restrictive alternative for advancing Congress’ interests.”Judge Reed’s ruling contains over 180 findings of fact that preface his conclusions of law, including a variety of issues pertaining to the amount of sexually explicit content present on the Web, the proportion of that content that is hosted and served from within the United States and abroad, the cost and effectiveness of filters, the effectiveness of existing age verification methods, the legislative history of COPA, and the nature of the affirmative defenses available under COPA.

Weighing the efficacy of filters against the potential impact of COPA, Judge Reed was persuaded by the evidence and arguments presented by the ACLU and its expert witnesses, and reasoned that even the least effective filter blocks far more content deemed “harmful to minors” than would be subject to prosecution under COPA.

“Even defendant’s own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web, garnering percentages as high as nearly 99 percent in successfully blocking such material,” Judge Reed observes.

Citing evidence in the case and findings of fact located elsewhere in the decision, Judge Reed notes that “there is a significant amount of sexually explicit material on the Internet which originates from outside of the United States… unlike Internet content filters which are able to block from view unsuitable material regardless of its origin, COPA has no extra-territorial application…. [As a result] COPA is not applicable to a large amount of material that is unsuitable for children which originates overseas but is nevertheless available to children in the United States.”

With respect to the lack of international scope of COPA, Judge Reed notes that the government attorneys argued handling the case had argued that “there is precedent for reading into a criminal statute extraterritorial application where a statute does not expressly provide for such,” Judge Reed found that because COPA includes both civil and criminal penalties, and because the intent of Congress is not clear with respect to the foreign reach of COPA, “the court will not read into COPA implied extraterritorial application.”

The judge also was not persuaded that existing age verification methods are adequate to further the intent of Congress to protect children, further limiting the overall efficacy of the law.

“COPA will also not be effective because its affirmative defenses including the age verification schemes are not effective,” Judge Reed states in his ruling.

In finding COPA impermissibly vague, Judge Reed notes that in the statutory language that defines violations of the COPA, Congress uses the phrase “knowingly and with knowledge of the character of the material” in 47 U.S.C. § 231(a)(1), but uses the term “intentionally” 47 U.S.C. § 231(a)(2).

“This court must assume that Congress intended the disparate use of ‘knowingly and with knowledge of the character of the material’ and ‘intentionally’,” reasons Judge Reed in his ruling. “However, since neither term is defined, the difference in scienter standards creates uncertainty in COPA’s application and renders the terms vague. The chilling effect created by this uncertainty is exacerbated by the fact that violations of both of the standards could result in criminal proceedings and violations of the intentional standard could result in a fine of up to $50,000 a day.”

Judge Reed also found the terms “communication for commercial purposes” and “engaged in business” problematic.

“Since the vagueness of ‘communication for commercial purposes’ and ‘engaged in business’ would allow prosecutors to use COPA against not only Web publishers with commercial Web sites who seek profit as their primary objective but also those Web publishers who receive revenue through advertising or indirectly in some other manner, the array of Web sites to which COPA could be applied is quite extensive,” Judge Reed writes. “Such a widespread application of COPA would prohibit and undoubtably (sic) chill a substantial amount of constitutionally protected speech for adults.”

Judge Reed further notes that “(N)othing in the statute references commercial pornographers, for whom the statute was apparently intended.”

“To read such a limitation into the statute would result in an impermissible rewriting of the statute and assumption of the role of the legislature by this court,” Judge Reed adds. “The term ‘minor’ is clearly not subject to a narrowing construction, because, as noted by the Third Circuit, acting as if COPA only applied to older minors would be ‘in complete disregard of the text’ of COPA…. There is no portion of the statute that could be severed to satisfy the First Amendment since the terms ‘commercial purposes’ and ‘minor’ cannot be removed and leave a viable statute. Thus, I conclude that COPA is unconstitutional as a result of its overbreadth.”

In concluding his ruling, Judge Reed makes clear that while his heart may be with the intent of Congress to protect children, his duty as a judge is to uphold the constitution – and to not do so would be a disservice to children, as well.

“Despite my personal regret at having to set aside yet another attempt to protect our children from harmful material, I restate today, as I stated when granting the preliminary injunction in this case, that ‘I without hesitation acknowledge the duty imposed on the Court…. and the greater good such duty serves. Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”

The Free Speech Coalition (FSC) applauded Judge Reed’s decision, and hailed it as “wonderful.”

“We’re dancing over here,” FSC Executive Director Diane Duke told YNOT today. “It’s a good, solid decision.”

Duke said she especially appreciated Judge Reed’s closing statement with regards to the harm done to minors if their First Amendment rights are “chipped away in the name of their protection.”

Reaction from the government’s side was muted; according to CNET News.com, a representative from the DOJ said Thursday “We’re still reviewing the court’s opinion and we’ve made no determination what the government’s next step will be.”

The government could file an appeal with the 3rd Circuit Court of Appeals, and ultimately request that the US Supreme Court take up the issue, if the 3rd Circuit did not overturn Judge Reed’s ruling.

Duke said the FSC is confident Judge Reed’s ruling will be upheld, both by the 3rd Circuit, and ultimately by the Supreme Court, should the case be carried that far.

For the full text of Judge Reed’s ruling, go to: http://www.paed.uscourts.gov/documents/opinions/07D0346P.pdf