Supreme Court Docket Report, October Term, 2003 - Number 2

By Miriam R. Nemetz and Craig W. Canetti in our Washington office.

On October 14, 2003, the Supreme Court granted certiorari in two cases of potential interest to the business community. Amicus briefs in support of the petitioners were due on Friday, November 28, 2003, and amicus briefs in support of the respondents are due on Friday, January 2, 2004.

1. Child Online Protection Act ó First Amendment. The Child Online Protection Act ("COPA" or "the Act") establishes civil and criminal penalties for knowing use of the World Wide Web to make "any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors." 47 U.S.C. ß 231(a)(1). The Supreme Court granted certiorari in Ashcroft v. ACLU, No. 03-218, to determine whether COPA violates the First Amendment.

COPA was enacted after the Supreme Court held that the Communications Decency Act ("CDA") . Congress's prior effort to limit children's access to sexually explicit material on the Web . violated the First Amendment. Reno v. ACLU, 521 U.S. 844 (1997). Responding to the Court's concerns about the CDA's breadth, Congress limited COPA's scope in three ways. First, COPA applies only to materials posted on the Web, and does not apply to chat rooms, e-mail, or newsgroups. 47 U.S.C. ß 231(a)(1). Second, COPA limits its scope to individuals or entities "engaged in the business of making such communications," meaning that the person "devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities." Id. at ß 231(e)(2). Third, material is considered "harmful to minors" under COPA only if (1) "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 * * * the prurient interest"; (2) it "depicts * * *, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, * * * or a lewd exhibition of the genitals or post pubescent female breast"; and (3) "taken as a whole, [it] lacks serious literary, artistic, political, or scientific value for minors." Id. at ß 231(e)(6) (emphases added).

Five weeks before the Act was to go into effect, the ACLU, along with individuals and entities that publish information on the World Wide Web (collectively "the ACLU"), filed a lawsuit challenging COPA's constitutionality in the United States District Court for the Eastern District of Pennsylvania. The district court granted a preliminary injunction barring enforcement of the Act, ruling that COPA was unlikely to withstand the...