American Civil Liberties Union v. Mukasey

534 F.3d 181 (3d Cir. 2008), aff’g sub nom. Am. Civil Liberties Union v. Gonzalez, 478 F. Supp. 2d 775 (E.D. Pa. 2007), cert. denied, 555 U.S. 1137 (2009)

Summary: The case was a facial challenge to the Child Online Protection Act (COPA), a federal law enacted in 1998 that criminalized the distribution of material harmful to minors on the internet.


COPA required websites with material “harmful to minors” to have an age verification method to verify that website visitors are not minors. The bill was the successor to the Communications Decency Act of 1996, a federal law intended to regulate obscene and indecent material on the Internet. In Reno v. ACLU, the Supreme Court struck down the anti-indecency provisions of the CDA.

The American Booksellers Foundation for Free Expression joined ACLU and several bookstores in filing a legal challenge in the U.S. District Court of Pennsylvania, arguing that COPA burdens speech that is constitutionally protected for adults, violates the First Amendment rights of minors and is unconstitutionally vague.

In February 1999, U.S. District Judge Reed granted a preliminary injunction blocking the enforcement of COPA. Judge Reed concluded that COPA burdens constitutionally protected speech, and that the law is not the least restrictive in barring minors from accessing materials harmful to minors.

In June 2000, the Third Circuit Court of Appeals affirmed the injunction, but on the grounds that using the “community standards” to determine what material is subject to the law makes it unconstitutionally overbroad.

In May 2002, the U.S. Supreme Court ruled the “community standards” language does not make COPA unconstitutional and sent it back to the Third Circuit for reconsideration but left the injunction in place.

In March 2003, the Third Circuit reaffirmed the granting of the injunction, on the original grounds that the District Court held COPA unconstitutional.

On June 29, 2004, the Supreme Court ruled in a 5-4 vote that the Child Online Protection Act (COPA) is overbroad and it was not the least restrictive means to prevent minors from accessing material harmful to minors. The Court also allowed the U.S. District Court to determine whether COPA should be permanently enjoined, instructing the lower court to take into account two laws Congress has passed that the high court said “might qualify as less restrictive alternative to COPA.”

The case, now called ACLU v. Gonzales, went to trial in the U.S. District Court in October 2006. In March 2007, Judge Reed issued a permanent injunction against the enforcement of COPA.

The case is appealed at the Third Circuit Court and is decided as ACLU v. Mukasey in July 2008. The Court affirms the District Court decision.

On January 21, 2009, the U.S. Supreme Court denied cert in an appeal of the Third Court decision, leaving in place the permanent injunction blocking the enforcement of COPA.

Plaintiffs: American Civil Liberties Union; American Booksellers Foundation for Free Expression; Androgyny Books, Inc. d/b/a A Different Light Book Stores; Artnet Worldwide Corporation; Blackstripe; Addazi Inc. d/b/a Condomania; Electronic Frontier Foundation; Electronic Privacy Information Center; Free Speech Media; Internet Content Coalition;; Philadelphia Gay News; PlanetOut Corporation; Powell’s Bookstore; Riotgrrl; Salon Internet, Inc.; and West Stock, Inc., now known as ImageState North America, Inc.