In Philadelphia today I attended the oral argument in the seemingly-never-ending case in which the "Child Online Protection Act" (COPA) has repeatedly been found to be unconstitutional. Chris Hansen, lead counsel in the case for the ACLU, presented an superb argument to the U.S. Court of Appeals for the Third Circuit (as detailed more fully below). Although one can never predict the outcome of any court case, the questions posed by the three judges make clear that they have serious doubts about the validity of the law.
The background on this case goes back ten or even twelve years. In 1996, both CDT and the ACLU led legal challenges to the "Communications Decency Act" (CDA); I was privileged to be one of the lead counsels in the CDT-led half of the case. We were successful, and in 1997 the U.S. Supreme Court unanimously decided that the CDA was unconstitutional, in the landmark Reno v. ACLU decision. A year later - in 1998 - Congress made minor changes to the overturned CDA statute, and passed COPA. Chris Hansen and the ACLU returned to court, and immediately got a preliminary injunction blocking COPA. Over the past ten years, the case has twice been up to the Supreme Court, which upheld the preliminary injunction and sent the case back the district court for a full trial. Judge Lowell Reed of the Eastern District of Pennsylvania conducted that trial in 2006, and issued in March 2007 a very thorough, careful opinion
finding that COPA is unconstitutional. The Department of Justice (DOJ) appealed the case, and the appeals court heard argument in the appeal today.
The DOJ attorney, Charles Scarborough, argued first and faced a very skeptical court.
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