Ashcroft v. ACLU - 542 U.S. 656, 124 S. Ct. 2783 (2004)

Rule:

In considering whether proposed alternatives will not be as effective as a challenged statute, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal. The purpose of the test is not to consider whether the challenged restriction has some effect in achieving Congress's goal, regardless of the restriction it imposes. The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress's legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.

Facts:

The Child Online Protection Act (COPA) (47 USCS § 231) prohibited any person from knowingly, in interstate or foreign commerce by means of the World Wide Web, making any communication for commercial purposes that was available to any minor and that included any material that was harmful to minors. One month before COPA was scheduled to go into effect, a group of organizations filed suit against the United States Attorney General in the United States District Court for the Eastern District of Pennsylvania to challenge COPA's validity under the Federal Constitution's First Amendment. The District Court granted the organizations’ motion for preliminary injunction, concluding that the organizations were likely to prevail, as COPA was likely to burden speech that was protected for adults, and there had been no showing as to the relative effectiveness of COPA and various proposed less restrictive alternatives. The United States Court of Appeals for the Third Circuit, in affirming, reasoned that COPA's use of "contemporary community standards" to identify material that was harmful to minors rendered COPA substantially overbroad. However, on certiorari, the United States Supreme Court vacated and remanded, on the ground that COPA's reliance on community standards to identify material that was harmful to minors did not, by itself, render COPA facially overbroad for First Amendment purposes. On remand, the Court of Appeals--again affirming the District Court's judgment--concluded that the District Court had not abused its discretion in granting the preliminary injunction, as COPA was not narrowly tailored to serve a compelling government interest, or the least restrictive means available for the government to serve the interest of preventing minors from using the Internet to gain access to materials that were harmful to them. Certiorari was granted. 

Issue:

Was COPA the least restrictive means to serve the government’s interest of preventing minors from using the Internet to gain access to materials that were harmful to them? 

Answer:

No.

Conclusion:

On certiorari, the United States Supreme Court held that the preliminary injunctive relief was warranted since the Attorney General failed to rebut the providers' contention that filtering software was a plausible, less restrictive, and available alternative to accomplish the congressional purpose. Filters imposed selective restrictions on speech recipients rather than universal restrictions at sources, and filters also could block foreign postings which were not subject to COPA. Further, filters could be applied to all forms of Internet communications such as e-mail rather than only communications available via the World Wide Web. Also, the fact that Congress could not mandate the use of filters did not preclude governmental incentives for the development and use of filters. Moreover, practical considerations, including evolving Internet and filter technology, warranted preliminary relief from the serious chill posed by COPA upon protected speech.