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As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. However, this principle, like other First Amendment principles, is not absolute. Obscene speech, for example, has long been held to fall outside the purview of the First Amendment.
The Child Online Protection Act (COPA) (47 USCS 231) prohibits any person from knowingly, in interstate or foreign commerce by means of the World Wide Web, making any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors. COPA defines "material that is harmful to minors" as any communication, picture, image, graphic image file, article, recording, writing, or other matter that is obscene or that (1) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal or pander to the prurient interest; (2) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female ***; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors
Did the reliance of COPA on community standards to identify material to be banned from World Wide Web as harmful to minors make COPA facially overbroad for First Amendment purposes?
The court held that the Internet's unique characteristics did not justify adopting a different approach than that previously set forth in connection with regulated speech for purposes of federal obscenity statutes. Congress had narrowed the range of content restricted by COPA in a manner analogous to the definition of obscenity. Any variance caused by the statute's reliance on community standards was not substantial enough to violate the First Amendment. COPA's reliance on community standards to identify material harmful to minors did not by itself render the statute substantially overbroad for purposes of the First Amendment. The court expressed no view as to whether COPA was overbroad for other reasons or was unconstitutionally vague, or whether the trial court correctly concluded that the statute likely would not survive strict scrutiny analysis once adjudication of the case was completed below. The Attorney General had not asked to vacate the preliminary injunction entered by the trial court, and in any event, the court could not do so without addressing matters yet to be considered below. The government remained enjoined from enforcing COPA absent further action below.