Top spin – How the latest COPA ruling will affect schools

In the most recent round of a ping-pong case,[1] the Court of Appeals for the Third Circuit has ruled the Child Online Protection Act (COPA) unconstitutional because it is vague, overbroad, and it fails to withstand strict scrutiny.[2] The Act, in essence, criminalized web material that is indecent or obscene, including anything that “taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.”[3]  Before the ink was dry, civil liberties groups and web content creators planned the litigation to challenge the Act. Their primary concern was that some content—totally appropriate and legal for adults—would become criminal unless the content creators could guarantee that no one age 17 or younger could access the materials.  In addition, they complained that what may be “harmful” to a kindergartener would not be similarly harmful for a 17-year-old high school senior, yet the same penalty applied.  Furthermore, the law applied only to United States-based Web sites,[4] and the vast majority of pornographic and objectionable material is housed on servers outside the reach of the United States government.  The stage was set for an epic (and lengthy) legal battle.

How the Supreme Court considers a First Amendment case

In a case involving content restrictions on speech, a court applies what is called “strict scrutiny” to the law at issue.  The government bears the burden to show that (1) the law serves a compelling governmental interest; (2) the law is narrowly tailored to achieve that interest; and (3) the law is the least restrictive means to advance that interest. Strict scrutiny is a difficult hurdle for a law to overcome.  In this instance, everyone seems to agree that protecting minors from inappropriate material is a compelling government interest, but the parties do not agree how to go about that task in a way that is narrowly tailored and restricts the least amount of legal material. 

In this latest round, the Third Circuit upheld the District Court’s finding that (1) COPA is not narrowly tailored to the compelling interest of Congress; (2) the government failed to meet its burden of showing that COPA is the least restrictive and most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad.  The court concluded by saying that COPA “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.”

The effect on schools

Filtering World Wide Web (“Web”) access in schools (or other “technological measures” to restrict inappropriate content) is a given.  While filters in public libraries were ruled unconstitutional in the litigation following passage of the Children’s Internet Protection Act (CIPA),[5] implementation of filtering or other means to block inappropriate Web content to schools is a requirement to receive federal e-rate funds that provide lower cost telecommunications services, including Web access.[6]  So you can be assured that your schools filter whatever Web access students have.  Filters are not perfect methods to remove all inappropriate content, however.  Without going into technological explanations, filters either over filter (meaning some valuable and appropriate information suitable for minors is blocked from reaching the schools) or under filter (meaning some inappropriate material slips through the filter before the filtering company is made aware of the site and blocks it).  Usually filters do a little of both.  If the government appeals the COPA case to the Supreme Court (a virtual certainty) and the Court finds COPA to be constitutional, filters may have a slightly easier job of blocking United States based adult-oriented content since there will be less of it online.  But since the Act will have no effect on adult content on out-of-the-US servers, filters will still need to protect school students from those materials. 

So what does this mean for Texas schools?  Probably very little.  Schools must filter Web access for students under the ruling in CIPA, so that protection must continue.  If COPA is constitutional, material “harmful to minors” on United States servers will be illegal.  Similar material can exist on servers outside the U.S. because the U.S. cannot dictate what other countries allow.  Information on some topics (not just pornography – things such as weapons, gore, horror, gambling, terrorism, and sexual health information) may be more difficult or impossible for you, personally, to access because those materials will likely be deemed “harmful to minors.” If your schools presently monitor their own Web sites to prevent inappropriate material from being posted, and you filter Web access to students, you should have your bases covered no matter which way COPA goes.

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