BULLETIN: March 22, 2007. Judge Lowell A. Reed declares Child Online Protection Act unconstitutional after trail on merits. Here is the link to the Opinion (PDF file) at the ACLU site. (or this to download first). Here is another link to a copy of the opinion on the USCourts site.  Here is my blogger entry on it.  CNN story is here.  My index to document sources is here.


On May 29, 2007 we learned that the government plans to appeal to the Third Circuit. Blogger story here. 

Nov. 2007.  The ACLU submitted it’s brief in response to the DOJ brief.  Link is here. (Requires latest Adobe). Please refer to that blog (above) for subsequent updates.


Bulletin: July 22, 2008.  The Third Circuit has upheld Judge Reed’s ruling. My Blogger coverage is here.




The new trial begins Monday Oct 23, 2006 in Philadelphia. Here are more details at my blogspot entry. More details follow on this same blog.  A higher level discussion is here. On Nov. 9 I placed an example of an ICRA label for my own site to show how it works.


The U.S. District Court, Eastern District of Pennsylvania website is   Anyone who wants current information from the court on ongoing trials may download and install the “JUST-ASK” application on their computer, from

Logon is through a closed, secure executable application rather than from conventional secured Internet logon through https. I have not yet tried it.


More info on 2:98-CV-05591-LR, ACLU v. Gonzales.:


Master page: 

(2/19/2007). A ruling could come at any time, on any business day that is not a federal holiday (probably Mon. to Thurs.. more likely before noon). If this page has not yet been updated, please check the ACLU reference above. Another good source is CNN, either law or technology. The detailed reasoning behind any opinion could be as important as the simple ruling itself, as could any specifics as to how and when COPA could be enforced, if it were to be upheld or if the injunction were to be lifted.

(note links on upper left panel to mp3 files for audio discussions; note also these links:)

Plaintiffs’ Bios:   Page 1—master page above, right column;    Page 2 (I appear hear as a critic of the military “don’t ask don’t tell “policy on gays)


ACLU news release:

Blog (from ACLU):

Blogs (from other litigants):

  From Scarleteen: (Heather Corinna):

Opening statement from Chris Hansen (representing Nerve) from COPA trial.

Philadelphia Inquirer Story Nov. 13 by Joseph A. Gambardello, “Crackdown on porn sites in court fight  (may require online subscription); the article title is, I think, a mischaracterization.  He has followup stories on Nov. 20 and Nov. 21

The Associated Press story is Maryclaire Dale “Justice Department attorneys, ACLU lawyers argue validity of 1998 online porn law before judge from the Midland Daily News (MI), Nov. 20 (may become archived or require subscription)

The Reuters story is by Jon Hurdle, “U.S. Judge to Rule on Landmark Internet Porn Law”.  Nov. 20   (may become archived or req sub)


Wired news story from Oct 23:,71993-0.html?tw=wn_politics_1


YNOT story from Q. Boyer:


Scott Rosenberg’s Wordyard blog from


Trial transcripts master:


Records of testimony (PDF files): from Oct. 23; Oct. 24  25  26  30  31 Nov 1   2  6  7 8  9 14 15   20 (closing arguments)

(an important concept introduced on Nov. 9 is “implicit content”; see my vocabulary link)

(As of 11/16 it appears that the trial is up to plaintiff’s rebuttal and closing arguments are expected soon. There will be eight points of fact to rule on. My exhibit is 118 and I cannot tell for sure if it is still in the record, but I believe that it still is.)


Apparently closing arguments were made on Monday Nov 20, 2006. Both sides have until Dec 7, 2006 to make final submissions.


From closing arguments:

Exhibits by ACLU at closing argument 11/20/2007:

For example:

Less restrictive alternatives list  

Comparison of filers and COPA as to effectiveness with various situations

Stats of sexually explicit web pages not blocked by AOL filter

Percentages of sexually explicit pages blocked, by name of filter


Note 6/29/2004:  The Supreme Court has just extended the injunction against the enforcement of COPA. Apparently it is being sent back to the original district court in Pennsylvania for a detailed trial on the merits. Follow this at   I will update here as soon as possible with more details. In the meantime please check the sites just listed. The AP wire story is at   The opinion text is at   My own commentary (as of 7/5/2004) is at

I understand that briefs for a new trial in the original district court in Philadelphia are due Dec 7 2004. The actual trial should follow shortly thereafter, although I do not have an exact date yet.

There is a new effort in 2005 to curb access of Internet pornography (as contrasted with “harmful to minors” materials) by minors. Go to this link.

There is a conceptual discussion at my link.

Please note the Supreme Court ruling of May 13, 2002, discussed below. On March 7, 2003 the Third Circuit upheld Judge Reid’s injunction on other grounds (see below). On May 13, 2003 the Third Circut refused the government's request for an en banc hearing. On August 11, 2003 the Justice Apartment appealed this decision to the Supreme Court (again). The plaintiffs filed a reply in September 2003, and the Supreme Court announced that it would hear the case (on non-community-standards grounds) on October 14, 2003. Briefs are due by the beginning of 2004. Oral arguments may be heard in early 2004 (probably around early Feb or Mar -- it now looks like the date is March 2, 2004 at 1 PM) and a decision may occur by June 2004. ( I attended in the 3 minute line and provide a summary here.)

Later information (9/2005). The discovery process for the trial started in September 2005. It is not expected at the present time that I will provide detailed testimony, depositions, or similar materials for the trial. There is a conceptual question as to whether or not the site that I run now “” would reasonably fit the definition of “commercial” as the DOJ is likely to construe it in defending the statute.  Generally, there may be questions as to whether plaintiffs who mostly give away free content meet the intention of the statute (that is, have standing to sue) as it is likely to be interpreted now.  There may also be questions as to whether the “harmful to minors” definition is going to be more narrowly construed as limited to “pornography.” Of course, this could change again in the future. The EFF reference is at 


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The Child Online Protection Act of 1998, also known informally as the “Son of CDA” or as “CDA II” (referring to the Communications Decency Act of 1996, ruled unconstitutional by the Supreme Court in 1997), creates a criminal and a civil offense for any for-profit (or possibly any commercial) entity of person that places harmful to minors” content on the World Wide Web without a domain-specific adult-verification mechanism to deter minors under 17 from viewing it.


“Harmful to minors” means, in rough terms, “obscene with respect to minors.” The law has been challenged as putatively unconstitutional by many web operators on several grounds including (1) the vagueness of the term “harmful to minors”, (2) vagueness in the way “community standards” could be applied on the Internet with respect to almost any definition of “harmful to minors,” (3) the technical and economic difficulty of providing adult verification for free content for sites not actually intended to sell pornography as usually understood, and (4) the chilling effect, interfering with the communication of non-obscene, constitutionally protected speech among adults (even if putatively “harmful to minors”).


This link provides a copy of the text of the Act. The reader is encouraged to study this text before going further.




· In June 1997. the Supreme Court overturns the Communications Decency Act

· In July 1998. Congress proposes a new Internet censorship law based on the “harmful to minors” concept, often used by states with respect to the sale of “adult” books and magazines or videos.

· In October 1998., Congress passes and President Clinton signs the Child Online Protection Act..  It would go into effect Nov.. 20.

· A number of plaintiffs, sponsored by the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF), file suit in the Eastern District of Pennsylvania, claiming that the law is unconstitutional,

· In later October, 1998, I contact EFF about (in behalf of my proprietorship, High Productivity Publishing) about becoming a plaintiff and I am accepted. 

· Judge Lowell  Reed of the Eastern District of Pennsylvania granted a Temporary Restraining Order against enforcement of COPA on November 19, 1998. The Justice Department agrees to postpone enforcement until February 2, 1999.

· The next hearing for a preliminary injunction took place on January 20, 1999. On Wednesday 1/26/1999 Judge Reed asked the attorneys 19 questions (note web references below); the most disturbing of these was this: if a law is "overbroad" and clearly burdens free speech among adults but is still the least restrictive means available to achieve a relatively narrow compelling state interest [shielding minors from pornography], can it be constitutional?)

· On February 1, 1999, Judge Reed issued a Permanent Injunction against enforcement of COPA.

· April 2, 1999 (just within a filing deadline) the Justice Department appeled to the Rhird Circuit.

·  On November 4, 1999, the Third Circuit heard oral arguments from both sides. Circuit judge Leonard Garth asked the government tough questions about the "severe standards" implied by the HTM definition in COPA, and suggested that the use of "community standards" or overbreadth could invoke religious-based censorship that could occur in Iran or Iraq. Judge McKee asked whether the mandatory adult identification would violate the right to privacy, such as a gay person (possibly in the military) not yet “out” who does not want to identify himself to a “gay” web site. 

· On May 22, 2000 the Supreme Court struck down a “child protection” feature of the Telecommunications Act of 1996, related to cable television operators. This may set an important precedent for COPA.

· On June 26, 2000 the Third Circuit upheld the Injunction, raising interesting concerns about the community standards notion in conjunction with the topology of the Internet.

· On May 21, 2001 the ACLU announced that the Supreme Court will hear an appeal by the government to the Third Circuit Decision. The case is now known as ACLU v. Ashcroft No. 00-1293. 

· November 28, 2001, the Supreme Court heard oral arguments from both sides in the case. The debate placed heavy emphasis on the community standards issue, with questions as to whether a national standard (with respect to harmful to minors) could be discerned for Internet materials, or whether the most conservative areas of the country could set the standards for everyone else. The Supreme Court has many options, including (1) overturning COPA and upholding the Third Circuit, (2) vacating the Third Circuit opinion, especially over the "national standard" issue, but leaving the injunction in place, and sending the case back to the Third Circuit for review on other grounds; (3) vacating the injunction and sending it back to the district court for full trial; (4) upholding the statute.


According to the ACLU:


"The constitutional flaws in this law are identical to the flaws that led the Supreme Court to strike down similar legislation four years ago," said ACLU attorney Ann Beeson, who argued before the Justices. "Once again, the law suppresses a wide range of socially valuable speech that adults have a right to communicate."

In 1997, the Justices unanimously ruled in
Reno v. ACLU that the Communications Decency Act was an unconstitutional restriction on free speech. Congress responded to that ruling by adopting the "Child Online Protection Act" in 1998.

In Ashcroft v. ACLU, (No. 00-1293), the ACLU argues that the online protection act targets a wide range of speech on the Internet that is valuable for adults but may be considered "harmful to minors" by some communities, with penalties of up to $150,000 for each day of violation and up to six months in prison.  The ACLU's 17 clients include writers of sexual advice columns;; OB/;; and websites for bookstores, art galleries, and the Philadelphia Gay News.”

The Supreme Court seemed to be very concerned that, with obscenity, a publisher “takes a chance” with a de facto national standard on the Internet and even, arguably, with print (Hamling), so the question then becomes why couldn’t a “national standard apply to pornography” or to harmful-to-minors.  The ACLU’s simple answer is that adults don’t have the legal right to access obscenity vut they do have such a right with HTM or non-obscene pornography. There was a hint that only very few of the plaintiff’s exhibits would have (according to the government) met the three prongs of the HTM definition, and apparently the “average person” notion from Miller v. California can be construed to mean that the value prong is satisfied by a legitimate minority of older minors. On May 13, 2002, the Supreme Court returned the case to the Third Circuit and left the injunction in place, but it held that a national community standard is not necessarily unconstitutional

On March 7, 2003 the Third Circuit upheld the injunction and wrote an opinion that indicates that COPA is still unconstitutional due to overbreadth even without use of community standards and topology arguments. The Court was particularly concerned with the meaning of concepts like “taken as a whole,” which it felt could apply to one web image at a time, and “commercial purposes,” and recognized that forcing customers to identify themselves would drive them away.


The DOJ appealed again, the Supreme Court accepted the case again, and oral arguments were heard on the morning of March 2, 2004 at 11 AM. The links are below on this file, with discussion at


June 29, 2004: The Supreme Court continues the injunction and remands back to lower court. The majority opinion talks about “content-based speech restriction” and whether filtering is an effective but less restrictive means, given uncertainty in the record so far about the scope of rapidly evolving technology. See the top of this page.



·The ACLU has set up a control center of materials regarding COPA. The links are

The plaintiffs are at  ( – “High Productivity Publishing” – my site (Bill Boushka aka. John W. Boushka) appears under Electronic Frontier Foundation (EFF).

The remaining links are in more or less chronological order.

· Text of the act

· Affidavit of (Dec. 1998)

· Questions by Judge Reed in January 1999

· Questions designed by HPPUB for readers

· Judge Reed’s Opinion supporting his Preliminary Injunction (Feb. 1999)

· Friend of Court brief submitted to Third Circuit by Republican supporters of COPA in July 1999

· Third Circuit Opinion upholding Injunction (June 2000)

· Article by HPPUB for Spring 2000 Minnesota Libertarian

· Article by HPPUB for “Bill of Rights 2” booklet

·Press Release” by HPPUB for Supreme Court appeal

· Petition by Justice Department and argument (May 2001);

· Argument by DOJ, Aug. 2001

· Reply by ACLU, September 2001 (require Adobe Acrobat):

· Additional responses by DOJ

· Center for Democracy and Technology


· Associated Press:

· CNN/AP story on May 13 2002 Supreme Court ruling partially upholding COPA

· For the opinion:

    ·· Text of first opinion draft from, or at eff: )    

    ·· Please visit findlaw home page also

    ·· draft copy at this site (no references) of the 2002 Supreme Court Opinion

    ·· Text of slip opinion from Supreme Court (in public domain) - Held:COPAs reliance on community standards to identify what material is harmful to minors does not by itself render the statute substantially overbroad for First Amendment purposes. The Court, however, expresses no view as to whether COPA suffers from substantial overbreadth for reasons other than its use of community standards, whether the statute is unconstitutionally vague, or whether the statute survives strict scrutiny. Prudence dictates allowing the Third Circuit to first examine these difficult issues. Because petitioner did not ask to have the preliminary injunction vacated, and because this Court could not do so without addressing matters the Third Circuit has yet to consider, the Government remains enjoined from enforcing COPA absent further action by the lower courts. P. 22.

I have read the Opinion and will consider its arguments carefully. There is discussion of Miller and Hamling and a general notation that Miller provides some reassurance with the "average person" concept. But there is concern over divergence of public opinion of when explicit material (sometimes necessary to make a point) is over the heads of minors and possibly perceived as "prurient" by them.

· ACLU summary of Third Circuit options (issue an opinion or return to District Court for full trial).

·        Text of ACLU Brief to Third Circuit (Sept. 2002) in PDF format

New York Times editorial “Protecting Internet Speech” May 16, 2002, link here.

· The Third Circuit listened to oral arguments on October 29, 2002. Constitutional first amendment ideas and the burden or reliability of age verification schemes were discussed in particular detail.

· Third Circuit Opinion of March 7, 2003 (requires Adobe Acrobat Reader)

· Copy of opinion (public domain) on this site (requires Adobe Acrobat Reader)

1.      ACLU materials on DOJ appeal of second 3rd Circuit Opinion (Supreme Court accepted the case on Oct. 14, 2003)  For an indirect link to a 10/14/2003 interview by the Washington Post with ACLU attorney Ann Beeson on the latest Supreme Court situation visit and look in the middle of the page for the permitted direct link.

2.      Apparently the oral arguments before the Supreme Court will take place on Tues March 2, 2004, case 03-218. Here is the Supreme Court website reference for the schedule:  In fact, it took place around 11 AM this morning March 2. I was present for some of the questions. I have written up a detailed summary on here. A major media (CNN/AP) report is at.

3.      Here are the latest ACLU links as of March 2004.



· This is a link giving more links to the latest briefs from both sides

·   Scott Rosenberg of Salon provides this account "Don't Worry, Be Sexy" on March 3, 2004. (Salon is one of the plaintiffs.)

· News accounts of the 3/2004 oral arguments::




· News account of the June 29, 2004 decision. 

(ABC news reported this as a “child pornography” case – a gaffe!)

· Text of the June 29, 2004 Supreme Court opinion  and my own reaction

. Text of Third Circuit Opinion ACLU v. Mukasey, July 22, 2008, link here.

· Original strike page by HPPUB for COPA (contains considerable details) (RSAC is described here, but see next item).

· Internet Content Rating Association (ICRA), which is developing a new paradigm for voluntary self-regulation by Internet publishers and parents., somewhat in the spirit of movie ratings. HPPUB is likely to participate soon.  See also the CNN news story from Oct. 2001 at

Recommended additional legal contacts (experience with constitutional litigation) whom I met at the Cato Institute


The Denton Record Chronicle ( reports in the Associated Press that “Feds Seek Google Records in Porn Probe,” in an attempt by the DOJ to build new arguments defending COPA, that minors are likely to find material through search engines out of context. The story appears Jan 19, 2006 at  Google has refused, but AOL, MSN (Microsoft Network) and Yahoo!  Have complied to a limited extent in such a way that does not identify individual customers. The Washington Post story on Jan. 2006 is Arahad Mohammed, “Google Refuses Demand for Search Information: Govt. Asked 4 Firms for Data in Attempt to Revive Anti-Porn Law”.  Newsweek has an interesting perspective by Steven Levy (Jan 23, 2006), “Technology: Searching for Searches,” at  The government maintains that the searches will not identify individual visitors and runs the risk that replicating these searches with different engines will prove that the filters and labels work, further sinking COPA.  But the government could use these searches to fish for other law enforcement problems, like terrorism.


Federal judge James Ware in San Francisco ruled on March 14 2006 that Google must turn over some of its search results of randomized searches. The government wants to reenter searches to show how easy it is (supposedly) to get around filters.  Here is the CNN reference: “Judge to Force Google’s Hand


Govtrack references


HR 4238 (105th Congress) Omnibus Consolidated and Emergency Appropriations Act (1999) even though passed in 1998, link here., replaced HR 3783, here.  See also mention of S 1086 at bottom of page for links.  


State Laws


Many states have “harmful to minors” laws affecting the Internet. For example, in 1999 Virginia enhanced its HTM law to apply to commercial Internet sites, and the wording of the statute is more explicit with respect to the possibility that words (as well as images) could be HTM and it is a bit more explicit than the Federal law as to what is considered prurient. A federal district court struck down the law on Oct 11, 2001. Other states in which laws have been struck down include New York, Michigan, and New Mexico. See, for Virginia,   original statute 

followup:  Virginia: ;    US Appeals court

From these links, it appears that the Fourth Circuit certified the case to be heard by the Virginia Supreme Court, but expressed great concern that Virginia had not adequately narrowed the meaning of “commercial” (does it just mean direct sale or loan of materials, or publicity leading to advertising or other sales?)  It also appears that the Fourth Circuit maintained that the law was unconstitutional literally as written and denied an en banc hearing. I am not able to determine whether the Virginia Supreme Court has heard it yet, let alone ruled, or whether it will (as of 12/2005). If anyone knows, please email me at one at or see  In general, the law presents similar problems to the federal COPA.


Jan. 2008: I have found a 4th Circuit Opinion dated from 2004 that appears to keep 18.2-391 off the books. The blog entry is here. The “Virginia Booksellers” case is also discussed, as is the new PSINet et al and ISP Association v. Virginia case. Apparently Virginia did not provide a specific “adult ID” affirmative defense. More detailed research on this seems to be needed.


Goldstein and Howe

Erik S. Jaffee, PC


See also


For more on the New Mexico case (1998) involinvg Oasis Magazine and OutFront, see 

For statement of hppub compliance policy, see adult access policy

A related subtle issue that may crop up in some state laws is solicitation of minors. A few states may have worded their solicitation statues vaguely enough that a site that provides sexual information could conceivably be construed as an indirect solicitation. A site that presents historical personal narratives or speculations might present more of a target for this kind of misinterpretation. In such cases, the appearance of a legitimate motive might provide an affirmative defense. Ironically, the ability of a site to earn money or to have third party support (as opposed support of self-publishing) – commercial in the sense of COPA -- could give a site more legitimacy. This seems like a murky area.  A possible downstream issue is the tendency of sites with sexual information to attract (through search engines) inbound spam, even spam offering child pornography. Of course, webmasters who filter their spam would not see it and would not be intending personally to receive it. Webmasters should always have disclaimers to contact them for legal purposes only. There is more discussion at  -- look after the discussion of “child pornography.” 

Wilkipeida references on COPA and related laws are at  



There is a similar new bill, S 1086, The Cyber Safety for Kids Act of 2007, S. 1086, was introduced on April 11, 2007 by Senator Max Baucus (D-MT), in the 110th Congress. There is more information here on blogger, Jan. 18, 2008 (follow all links).

Return to COPA Supreme Court account; Return to opinion discussion

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ãCopyright 2001 by Bill Boushka and High Productivity Publishing, subject to fair use.

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