February 1996, the CDA was designed to criminalize the transmission of ‘‘indecent’’
material to persons under 18 and the display to minors of ‘‘patently offensive’’ content
and communications. 5 The CDA took aim not only at the authors of ‘‘indecent’’ material but also at their Internet service providers, although it offered them each safe harbor if they imposed technical barriers to minors’ access. 6
Prior to taking effect, the CDA was challenged in federal court by a group of civil liberties and public interest organizations and publishers who argued their speech would
be chilled by fear of the CDA’s enforcement. The three-judge district court panel concluded that the terms ‘‘indecent’’ and ‘‘patently offensive’’ were sufficiently vague such
that enforcement of either prohibition would violate the First Amendment. 7 ‘‘As the
most participatory form of mass speech yet developed,’’ Judge Stewart Dalzell wrote in
a concurring opinion, ‘‘the Internet deserves the highest protection from governmental intrusion.’’ 8 The U.S. Supreme Court affirmed this holding in 1997, invalidating the
CDA’s ‘‘indecency’’ and ‘‘patently offensive’’ content prohibitions. 9 In the landmark
case Reno v. ACLU, the Court held that CDA was not the ‘‘least restrictive alternative’’
by which to protect children from harm. Rather, parent-imposed filtering could effectively block children’s access to indecent material without preventing adults from
speaking and receiving this lawful speech. 10 Other sections of the CDA continue to remain in force, including Section 230, which provides immunity to ISPs for content
that third-party users place online. 11 Section 230 has had an undeniably powerful
impact in promoting free speech in the United States. A growing body of case law suggests that it is being used by ISPs to settle or quickly dismiss claims that are brought
against them. 12 Many question whether the sweeping protections offered by Section
230 offer in fact too much protection for online speech and excessively limit the ability
of victims and the state to suppress harmful speech. 13
Lawmakers responded to the Supreme Court’s decision in Reno v. ACLU by enacting
the Child Online Protection Act (COPA)—a second attempt at speaker-based content
regulation. In COPA, the U.S. Congress directed its regulation at commercial distributors of materials ‘‘harmful to minors.’’ 14 The slightly narrower focus of COPA did not
solve the constitutional problems that doomed the CDA. The district court enjoined
COPA on First Amendment grounds. 15 After a few trips to the Supreme Court and
back for fact-finding, the district court issued its ruling in March 2007, finding COPA
void for vagueness and not narrowly tailored to the government’s interest in protecting minors. Once again, the court held that criminal liability for speakers and service
providers was not the ‘‘least restrictive means’’ to accomplish the government’s purpose because the private use of filtering technologies could more effectively keep harmful materials from children. The Third U.S. Circuit Court of Appeals later affirmed this
decision, and, in January 2009, the Supreme Court put the legislation to rest—at least
for now—by refusing to hear the case.
Plaintiffs successfully argued that CDA and COPA would chill the provision and
transmission of lawful Internet content in the United States. Faced with the impossible
United States and Canada Overview
371
material to persons under 18 and the display to minors of ‘‘patently offensive’’ content
and communications. 5 The CDA took aim not only at the authors of ‘‘indecent’’ material but also at their Internet service providers, although it offered them each safe harbor if they imposed technical barriers to minors’ access. 6
Prior to taking effect, the CDA was challenged in federal court by a group of civil liberties and public interest organizations and publishers who argued their speech would
be chilled by fear of the CDA’s enforcement. The three-judge district court panel concluded that the terms ‘‘indecent’’ and ‘‘patently offensive’’ were sufficiently vague such
that enforcement of either prohibition would violate the First Amendment. 7 ‘‘As the
most participatory form of mass speech yet developed,’’ Judge Stewart Dalzell wrote in
a concurring opinion, ‘‘the Internet deserves the highest protection from governmental intrusion.’’ 8 The U.S. Supreme Court affirmed this holding in 1997, invalidating the
CDA’s ‘‘indecency’’ and ‘‘patently offensive’’ content prohibitions. 9 In the landmark
case Reno v. ACLU, the Court held that CDA was not the ‘‘least restrictive alternative’’
by which to protect children from harm. Rather, parent-imposed filtering could effectively block children’s access to indecent material without preventing adults from
speaking and receiving this lawful speech. 10 Other sections of the CDA continue to remain in force, including Section 230, which provides immunity to ISPs for content
that third-party users place online. 11 Section 230 has had an undeniably powerful
impact in promoting free speech in the United States. A growing body of case law suggests that it is being used by ISPs to settle or quickly dismiss claims that are brought
against them. 12 Many question whether the sweeping protections offered by Section
230 offer in fact too much protection for online speech and excessively limit the ability
of victims and the state to suppress harmful speech. 13
Lawmakers responded to the Supreme Court’s decision in Reno v. ACLU by enacting
the Child Online Protection Act (COPA)—a second attempt at speaker-based content
regulation. In COPA, the U.S. Congress directed its regulation at commercial distributors of materials ‘‘harmful to minors.’’ 14 The slightly narrower focus of COPA did not
solve the constitutional problems that doomed the CDA. The district court enjoined
COPA on First Amendment grounds. 15 After a few trips to the Supreme Court and
back for fact-finding, the district court issued its ruling in March 2007, finding COPA
void for vagueness and not narrowly tailored to the government’s interest in protecting minors. Once again, the court held that criminal liability for speakers and service
providers was not the ‘‘least restrictive means’’ to accomplish the government’s purpose because the private use of filtering technologies could more effectively keep harmful materials from children. The Third U.S. Circuit Court of Appeals later affirmed this
decision, and, in January 2009, the Supreme Court put the legislation to rest—at least
for now—by refusing to hear the case.
Plaintiffs successfully argued that CDA and COPA would chill the provision and
transmission of lawful Internet content in the United States. Faced with the impossible
United States and Canada Overview
371