Ashcroft v. American Civil Liberties Union
The Supreme Court kept in place a lower court's order blocking enforcement of the Child Online Protection Act, a law that made it a crime for commercial websites to let minors access sexually explicit material without an age check.
The Court found that the government had not shown that less restrictive options, like filtering software installed by parents, wouldn't work just as well or better, and sent the case back for a full trial rather than deciding once and for all whether the law is constitutional.
“Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people.”
Explaining why content-based speech restrictions demand strict judicial scrutiny.
How it got here: A federal trial court enjoined enforcement of COPA; the Third Circuit affirmed twice, once after a prior Supreme Court remand; the government again sought Supreme Court review.
The Case in Depth
What happened
Congress passed COPA to criminalize commercial websites that let minors access sexually explicit ("harmful to minors") material without age verification, after an earlier law, the Communications Decency Act, was struck down. Web publishers, booksellers, and civil liberties groups sued, arguing COPA would chill lawful speech aimed at adults because complying with its verification requirements was costly and risky.
The question before the Court
Could the government be blocked from enforcing a federal law that criminalized posting sexually explicit material online where minors could see it, while the case went to trial?
The Court's answer
No — the Court left the injunction against enforcing COPA in place, ruling that the government had not met its burden of showing that COPA was the least restrictive way to protect minors from sexually explicit material online. The Court pointed to filtering and blocking software as a plausible alternative that could work as well or better, since it screens content without criminalizing speech and can block material regardless of where it originates.
Because the constitutional question was close and the factual record about internet technology was outdated, the Court chose not to resolve the law's constitutionality now. Instead it sent the case back to the trial court so the government would have a full opportunity to prove, with current evidence, that no less restrictive alternative could achieve Congress's child-protection goal as effectively as COPA.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Website operators who post adult content remain free from the threat of COPA's criminal penalties for now, while the underlying constitutional fight continues in the lower courts. The ruling also signals that governments trying to shield children from online material must first show that less speech-restrictive tools, like filters, can't do the job.
What changes now
The case returns to the district court for a full trial on the merits, where the government will have another chance to prove COPA is the least restrictive way to protect minors and the parties can introduce updated evidence about internet technology and filtering effectiveness. Until and unless the government succeeds at trial, the injunction blocking COPA's enforcement remains in effect. This is not a final ruling on the law's constitutionality.
What this does not decide
The Court did not decide whether COPA is unconstitutional; it only upheld the preliminary injunction pending trial. It also did not rule that Congress can never regulate internet content to protect minors, leaving open the possibility that the government could later prove COPA is the least restrictive effective option.
Concurrences and dissents
Concurrence — Justice Stevens
Justice Stevens agreed with the majority's less-restrictive-alternative analysis but stressed that COPA's use of 'community standards' was an independent, likely fatal flaw he had identified in earlier cases. He also argued that using criminal penalties at all to regulate this kind of speech was inappropriate given how blurry the line is between obscene and protected material.
Dissent — Justice Scalia
Justice Scalia argued COPA is constitutional but objected to applying strict scrutiny at all, contending that commercial pornography aimed at pandering to prurient interests receives no First Amendment protection and could be banned outright, so COPA's lesser restrictions raise no constitutional problem.
Dissent — Justice Breyer
“But the Constitution does not, because it cannot, require the Government to disprove the existence of magic solutions”Breyer's objection that the majority demands an impossible standard of proof from the government.
Justice Breyer argued that COPA, properly read, reaches only obscene or nearly obscene commercial material and imposes only a modest burden on protected speech. He contended filtering software is part of the pre-existing status quo, not a real alternative, and that it is flawed, costly, and depends on inconsistent parental enforcement, so COPA significantly and permissibly advances the compelling goal of protecting children.
How the Court got there
The legal reasoning, step by step
- The Court reviewed the case only for whether the trial court abused its discretion in granting a preliminary injunction, a deferential standard that asks whether the trial judge made a clear error, not whether the appellate court would have ruled the same way.
- Because COPA restricts speech based on its content, the Court applied strict scrutiny, requiring the government to prove the law is the least restrictive way to achieve its goal of protecting minors, with the burden of proof resting on the government rather than the challengers.
- The Court found that filtering and blocking software installed by parents was a plausible less-restrictive alternative, since it can screen out material at the point of reception without criminalizing any speech, and a government-commissioned report had rated filters as more effective than age-verification screens.
- The Court reasoned that the government had not disproved this alternative's effectiveness, noting that a large share of harmful material originates overseas beyond COPA's reach, while filtering software can block content from any source.
- Because the constitutional balance was close and the factual record was over five years old given rapidly changing internet technology, the Court concluded the safer course was to preserve the injunction and let a trial develop a fuller, more current record rather than resolve the constitutional question now.
Doctrinal impact
Cases affected by this decision
Reaffirms Reno v. American Civil Liberties Union (521 U.S. 844)
The Court relies on Reno's rule that less restrictive alternatives can defeat a content-based internet speech restriction.
Reaffirms United States v. Playboy Entertainment Group, Inc. (529 U.S. 803)
The Court treats Playboy as the closest precedent, requiring the government to disprove less restrictive alternatives.