AMICUS CURIAE BRIEFS

November 1, 2007

The World Press Freedom Committee joined several free press organizations in an amicus effort supporting the American Civil Liberties Union (“ACLU”) and others in the ongoing challenge to the Children’s Online Protection Act (“COPA”) that has worked its way through United States Courts for several years. The case is now before the United States Court of Appeals for the Third Circuit. Two amicus briefs have been filed in support of the ACLU-led lawsuit which alleges the law is unconstitutional; the WPFC brief focuses mainly on the adverse effects that this law would have on international application of domestic freedom of expression and other human rights laws.

COPA was passed in 1998, shortly after the United States Supreme Court had declared unconstitutional a similar law known as the Communications Decency Act. Like its predecessor, COPA is intended to prevent access by minors to materials deemed harmful to minors, without defining with any specificity what constitutes a “minor” or materials that are “harmful to minors”. The ACLU immediately filed suit alleging that COPA violated the First Amendment to the United States Constitution. The United States District Court for the Eastern District of Pennsylvania agreed, and issued an injunction preventing COPA’s application in 1998. This injunction was upheld by the United States Court of Appeals for the Third Circuit. Although the United States Supreme Court disagreed with the Appeals Court’s rationale, it did not entirely overturn the injunction, instead remanding the case to the Third Circuit for further review. The Appellate Court once again declared the law unconstitutional and the government again appealed to the Supreme Court. This time, in 2004, the United States Supreme Court upheld the injunction, finding it extremely likely that the law itself would be unconstitutional.

The case was remanded to the lower court, the United States District Court for the Eastern District of Pennsylvania, for full consideration of the law’s constitutionality. The United States District Court formally declared the law unconstitutional in early 2007. The government filed yet another appeal, which brings us to the instant case before the United States Court of Appeals for the Third Circuit.

While eighteen US-based free expression and free press organizations filed an amicus brief elaborating on the constitutional infirmities of COPA that are highlighted by the lack of any attempt by the government to allow Internet users to employ filtering software of their choice as a less restrictive alternative to government regulation of the Internet, the WPFC joined Article 19, the Committee to Protect Journalists, and Reporters Without Borders in challenging the jurisdictional problems raised by COPA. The brief’s main arguments include:

• The Internet has commonly been held in the United States to be the medium most deserving of First Amendment protection. Efforts by the United States government to restrict free speech on the Internet outside the country’s borders threaten these traditional protections and the global nature of the Internet.
• The relatively new attempt by the Department of Justice to apply COPA to foreign actors violates general United States law regarding jurisdiction, the Department’s own interpretation – agreed to by every court that has reviewed the law – that COPA’s reach ends at the border, and several international treaties to which the United States is a party.
• This reinterpretation of COPA would promote global censorship of the Internet. This is the main reason that the WPFC joined this amicus brief, as it is in line with several of our efforts to promote Internet freedom in recent years, including the New Media Conference held in Paris in 2006 and participation by WPFC representatives at several International Telecommunications Union events such as the 2006 Plenipotentiary Conference in Turkey, the 2007 Internet Governance Forum in Brazil and the World Summit on Information Society held in Switzerland in 2003 and Tunisia in 2005.
• The brief argues that United States enforcement of its laws on a global basis would invite reciprocal enforcement by other countries with far more repressive laws, with Internet freedom becoming hostage to the least common denominator in terms of laws restricting speech.
• Because the United States focuses on regulating sexually-oriented materials to a higher degree than other countries, attempts to enforce COPA overseas would threaten access to legitimate news coverage from such mainstream publications as Canal Plus, Mediaset, RTL, Der Spiegel, Komsomolskaya Pravda, El Pais, and BBC Online. 

The case will be argued before the United States Court of Appeals for the Third Circuit later this year or early in 2008, with a decision expected later in 2008.