Ashcroft v. American Civil Liberties Union

Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002) (also called Ashcroft v. ACLU), was a 2002 United States Supreme Court case involving the American Civil Liberties Union and the United States government regarding the Child Online Protection Act (COPA).[1] The unconstitutionality of the law was ultimately upheld by the United States Court of Appeals for the Third Circuit, while earlier injunctions against the law by that same court were at first dismissed by but later upheld by the Supreme Court. Ashcroft v. Free Speech Coalition (2002) dealt with a similar law, the Child Pornography Prevention Act of 1996 (CPPA).[2]

Ashcroft v. ACLU
Argued November 28, 2001
Decided May 13, 2002
Full case nameJohn Ashcroft, Attorney General v. American Civil Liberties Union, et al.
Citations535 U.S. 564 (more)
122 S. Ct. 1700; 152 L. Ed. 2d 771; 2002 U.S. LEXIS 3421; 70 U.S.L.W. 4381; 30 Media L. Rep. 1801; 2002 Cal. Daily Op. Service 4057; 2002 Daily Journal DAR 5183; 15 Fla. L. Weekly Fed. S 256
Case history
PriorOn writ of certiorari to the United States Court of Appeals for the Third Circuit, ACLU v. Reno, 217 F.3d 162, 2000 U.S. App. LEXIS 14419 (3d Cir. 2000)
SubsequentOn remand, ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003); affirmed, 542 U.S. 656 (2004); on remand, 478 F. Supp. 2d 775 (E.D. Pa. 2007); 534 F.3d 181 (3d Cir. 2008)
The Child Online Protection Act's reliance on community standards to identify what material "is harmful to minors" does not by itself render the statute substantially overbroad under the First Amendment.
Court membership
Chief Justice
William Rehnquist
Associate Justices
John P. Stevens · Sandra Day O'Connor
Antonin Scalia · Anthony Kennedy
David Souter · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer
Case opinions
MajorityThomas (parts I, II, IV), joined by Rehnquist, Scalia (in full); O'Connor (Parts I, II, III-B, IV); Breyer (Parts I, II, IV)
ConcurrenceKennedy, joined by Souter, Ginsburg
Laws applied
Child Online Protection Act; U.S. Const. amend. I

COPA was Congress's second attempt to criminalize the Internet distribution of what it considered pornography, including simulated pornography and artwork. COPA enforced penalties of a $50,000 fine and six months in prison for the posting for "commercial purposes" of content on the internet that is "harmful to minors". Material that is "harmful to minors" is defined as:

any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." §231(e)(6).


In 1996 Congress created the Communications Decency Act, (CDA) as part of the 1996 Telecommunications Act. The CDA prohibited the use of the internet to purposely send indecent material to those under 18 years of age. The CDA was found unconstitutional in Reno v. ACLU, because in the CDA the internet was held to the same standards as broadcast media. The court held that because the internet is less "invasive" than broadcast media, the same rules could not apply to the two entities. Despite this ruling, however, the court agreed that the government does have a responsibility to protect minors from obscene/indecent internet content. Congress's second attempt to answer to this was the Child Online Protection Act (COPA) of 1998. COPA made it illegal for any commercial sources to allow minors access to "harmful" content, drawing on language from the landmark Miller v. California case to better define the term "obscenity."

Opponents of COPA argued that child pornography is already illegal, and COPA would not be effective because it would waste too much time going after individual sites within the US which could simply set up shop overseas if shut down. It was also argued that COPA would infringe upon rights of adults to receive non-pornographic/harmful messages, and that COPA was not the least invasive or most efficient way to protect children from harmful online content.


  • June 1997: In Reno v. American Civil Liberties Union, anti-indecency provisions of the Communications Decency Act are struck down in a unanimous decision.
  • 1998: Congress passes the Child Online Protection Act (COPA), an amendment to the Communications Act of 1934, to address the concerns from the Reno case.
  • 1999: A judge in the Eastern District of Pennsylvania granted a preliminary injunction blocking COPA enforcement. The ruling is appealed to the U.S. Court of Appeals for the Third Circuit.
  • 2000: The Third Circuit affirmed the preliminary injunction against COPA because they deemed it impossible to apply "contemporary community standards" to the internet.[3] This decision is then appealed to the Supreme Court.
  • May 2002 (original ruling): The U.S. Supreme Court affirmed the injunction, and sent the case back to the Third Circuit, ruling that using community standards would cause more harm than good.[1]
  • October 2002: The Third Circuit hears the case a second time.
  • March 2003: The Third Circuit upholds the injunction.[4] A second appeal is launched to the Supreme Court.
  • June 2004: The Supreme Court reaffirms the original preliminary injunction.[5]
  • October 2006: The case goes to trial in the Eastern District of Pennsylvania.
  • March 2007: A permanent injunction is granted.[6] The case is appealed to the Third Circuit.
  • July 2008: The permanent injunction is upheld by the Third Circuit.[7] The case is appealed to the Supreme Court.
  • January 2009: The Supreme Court refuses to hear the appeal, effectively striking COPA from the United States code, with the law never having taken effect.

Ashcroft v. ACLU

The case Ashcroft v. ACLU started on January 11, 1999. COPA opponents argued that self installed filters were much more effective at blocking obscene/indecent content, and would allow individuals to choose what content they wanted to see, not the government. Opponents also held that legal speech would be made criminal by COPA, and that adults would be prevented from seeing legal content if they did not have a credit card to get past security screens. It was also argued that in some cases fully complying with COPA would not have guaranteed freedom from prosecution (Stevens) and that the plan was flawed because some minors do have their own credit cards, and could thus go around the screens with ease.

Issues: Filters: They have four problems. 1. Under blocking where some pornographic material is still able to pass through. 2. Software costs money and not every family has the $40, or so, necessary for installation. 3. Filtering depends upon the parent's willingness to decide which web sites are suitable for their children and enforcing this. 4. Software blocking lacks precision. A lot of valuable material is blocked along with the harmful content.

Wording: The phrases, "prurient interest" and "no serious value" block material that does not fall within the law. For example, material that would be blocked under these phrases are: serious discussions about birth control practices, homosexuality, or the account by a 15-year-old girl who was raped, and a guide to the self-examination of testicular cancer. There is an uncertainty about how to define close to obscene material that may be on the border of being defined as indecent.

Age Verification: Age screening could lead to embarrassment in some users. This requires all adults to enter a credit card number or age verification number, even if they are childless. Problem: Children may obtain a parents credit card number, if desired.

Decision: COPA should be enjoined because the statute likely violates the first amendment. There are less restrictive alternatives to COPA. Blocking and filtering software are less restrictive. Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Childless adults can access information they have a right to see without having to identify themselves. Adults with children may turn off their filters to access material they wish to view. Congress passed two more less restrictive alternatives to COPA: the prohibition of misleading domain names and the minor safe "dot-kids" domain name. Blocking and filtering software also blocks all pornography (40% of content deemed harmful to minors comes from overseas).

Dissenting opinions

A large portion of the opinion of this brief involved the opinions of those who dissent from the decision the court has made, or who disagree with it. Several justices in this case filed opinions concurring in the judgment, and for many different reasons. Several justices joined in disagreement with the court's decision to invoke an injunction on the Child Online Protection Act.

They argued that Congress could not have possibly achieved its statutory objective in another, less restrictive way, that COPA did not impose a large amount of limits on free speech, and that the Act was tailored to fit a compelling interest . The reasons they give are as follows:

Filters are among the suggested methods of using less restrictive means to protect minors from "harmful" content. However, currently-available filtering technology is lacking in several different ways:

  1. Filtering is faulty. It allows some harmful material to get through because filters use a system of matching key words and phrases, and lack the capability to distinguish between images that are deemed "obscene" and those that are not.
  2. In this same sense, filters lack precision. They block out some valuable material along with the harmful material deemed "obscene". An example of this given in Justice Breyer's dissent is the ACLU informing Congress during a hearing that filtering software "blocks out valuable and protected information, such as information about the Quaker religion, and web sites including those of the American Association of University Women, and the AIDS Quilt. This is an extreme weakness of filters, something that will probably be used in arguments against them until, and if, new technology is developed that is able to define and deem what is "obscene" and what is not.
  3. It is not possible for a parent to control filters on all computers, and the likelihood of a minor to simply use a different computer without a filter on it is extremely high. This is the problem with filtering content at the user end, and not at the source. It is impossible to enforce parental monitoring of their children. Justice Breyer uses an example illustrating that

    more than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents.

  1. Filtering software costs money.

Justice Breyer then argues a second point: The court had decided that the Act was not narrowly tailored to fit Congress's "compelling interest", or its intended objective. This means that the court deemed that COPA included too large a scope of regulated content to be determined constitutional under the First Amendment, and in turn it was not capable of achieving Congress's goal of protecting minors from harmful online content. Justice Breyer argues the contrary.

In Justice O'Connor's concurrence, she says that the Act as "properly interpreted" imposes "only a modest burden on protected speech". She uses the Miller v. California case to highlight this. Comparing the Miller precedent's definition of what is deemed legally obscene, she shows how COPA's terminology is extremely similar to that of the Miller case. She argues that "the only significant difference between the present statute and Miller's definition consists of the addition of the words "with respect to minors", and "for minors", and that this broadens the Act's scope only slightly.

She also argues that the Act was tailored to fit a compelling interest, and that the use of "alternative" and "less restrictive" regulation such as filters was not tailored to fit a compelling interest, and she in fact argued that filters are the "status quo". She argues that filters, as they are readily available now, do not further Congress's goals in any way, and in turn do not pursue a compelling interest. Sticking with the "status quo" is always easier, but it does not further the goal, and it only allows the problem to perpetuate. She gives the example of "despite the present existence of filtering software, children are still gaining access to harmful material".

She says that the court should not have asked whether the Act uses the least restrictive means possible to protect minors from harmful content, but whether it advances Congress's goals?

She concludes that COPA does not enact major burdens on free speech when it is properly interpreted. That it "significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography". And that there is no "practically available, less restrictive way similarly to further this compelling interest."

See also


  1. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002).
  2. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
  3. American Civil Liberties Union v. Ashcroft, 217 F.3d 162 (3d Cir. 2000).
  4. American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3d Cir. 2003).
  5. Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004).
  6. American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007).
  7. American Civil Liberties Union v. Gonzales, 534 F.3d 181 (3d Cir. 2008).
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