Ashcroft v. American Civil Liberties Union - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 03-218, Ashcroft versus American Civil Liberties Union will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: This case presents a challenge to a statute enacted by Congress to protect miners from exposure to sexually explicit material on the internet.

The statute is the Child Online Protection Act and the abbreviation for that Act is COPA, and is referred to as COPA.

COPA prohibits the posting to the World Wide Web the materials that are harmful to minors.

It does provide an affirmative defense for content providers who use age verifying technology to restrict access to their web sites.

COPA is Congress’ second attempt to make the internet safe for minors by criminalizing certain speech.

The first, the Communications Decency Act was invalidated by this Court in 1997.

In enacting COPA, Congress gave consideration to that case and to our other decisions in this area.

So, we must proceed with caution and care before invalidating COPA.

The imperative of the Court in respect to Congress however, does not permit us to depart from well-established First Amendment principles.

Instead, we must hold the government to its constitutional burden of proof.

Content based prohibitions enforced by criminal penalties have a constant potential to be a repressive force in the lives and thoughts of the free people.

To guard against that threat, the Constitution requires that content based restrictions on speech be presumed invalid.

The government bears the burden of showing their constitutionality.

Now, this case comes to the Court on certiorari review of an appeal to the Court of Appeals for the Third Circuit, and the appeal to that court was from the District Court’s decision to grant a preliminary injunction.

The Court of Appeals for the Third Circuit reviewed that decision for abuse of discretion.

Under that standard, the Court of Appeals was correct to conclude that the District Court did not abuse of discretion in granting the preliminary injunction.

In affirming the District Court, the Court of Appeals discussed a number of respondent’s challenges to the constitutionality of the statute.

In the opinion filled with the Clerk of the Court today however, we concentrate on one ground and this was the ground primarily relied on the District Court.

And that issue is whether or not there are less restrictive alternatives to the statutory scheme.

The government has failed at this point to carry its burden to rebut the respondent’s contention that there are plausible less restrictive alternatives to the statute.

In particular, the government has failed to show that blocking and filtering software is not a less restrictive alternative than the criminal prohibitions in COPA.

Filters are less restrictive because they impose selective restrictions at the receiving computer rather than blanket propositions of the source and because they do not criminalize speech, they also may be more effective than COPA.

For example, a commission appointed by the Congress in COPA itself, has concluded that filters are more effective that the verification technologies that the COPA requires.

Whether or not filters are in fact more effective than the restrictions implemented by COPA however, the government at this point has not met its constitutional burden of showing hat they are significantly less so.

The government having failed to carry its constitutional burden of proof, it was not an abuse of discretion for the District Court to grant the preliminary injunction.

In addition, substantial practical considerations support our decision to affirm the preliminary injunction and remand for trial.

Remand will allow the introduction of further evidence on the relative effectiveness of alternative to COPA.

The District Court can also consider technological and legal developments that have occurred in the time since the District Court originally entered the preliminary injunction to take just one example.

In the time since the District Court made its fact findings, the growth of the internet has been rapid with a number of internet host computers increasing from 36.7 million to 233.1 million today.

For these reasons, we affirm the decision of the Court of Appeals.

Justice Stevens has filed a concurring opinion in which Justice Ginsburg joins; Justice Scalia has filed a dissenting opinion; Justice Breyer has filed a dissenting opinion in which the Chief Justice and Justice O’Connor join.