WASHINGTON (ABP) — A federal law attempting to make it harder for kids to access Internet pornography cannot be enforced because it likely violates the First Amendment, the U.S. Supreme Court said June 29.
The justices ruled that a lower court's order barring enforcement of the law could stand — and that the law probably wouldn't survive a challenge on free-speech grounds.
In Ashcroft vs. American Civil Liberties Union, a sharply divided court ruled that the Child Online Protection Act should not be enforced pending a trial on its constitutionality. COPA — passed in 1998 and
signed into law by then-President Bill Clinton — was Congress' second attempt to block children's access to pornography and other harmful materials on the Internet.
“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,” Justice Anthony Kennedy wrote, in the opinion for the 5-4 majority.
COPA imposes fines of $50,000 and six months' imprisonment on owners of commercial Internet sites who knowingly post materials “harmful to minors.” The act defines such material as any that “the average person, applying contemporary community standards” would find “designed to appeal to … the prurient interest.”
It further defined such materials as those depicting or representing “an actual or simulated sexual act” or “a lewd exhibition of the genitals or post-pubescent female breast” and is lacking in “serious literary, artistic, political, or scientific value for minors” under 17 years of age.
However, COPA exempted website administrators from the penalties if their sites used age-verification software, required credit-card numbers or employed similar tactics to ensure that minors could not gain access to the restricted material.
In 1996, Congress passed a similar but broader law, the Communications Decency Act. The high court struck it down in 1997, saying its provisions went too far in restricting free speech.
Congress passed COPA in response, and a coalition of Internet content providers and free-speech groups filed suit against it. A federal district court barred its enforcement, saying the law would likely prove to be a violation of the First Amendment. The 3rd U.S. Circuit Court of Appeals affirmed that decision, saying the law's “community standards” language made it too sweeping an imposition on free-speech rights.
In 2002, the Supreme Court reversed the 3rd Circuit's decision to uphold the injunction on those grounds and sent the case back to that court. The 3rd Circuit responded by upholding the injunction again but on different legal grounds — that COPA was not written narrowly enough and that there were less restrictive ways to satisfy the government's purposes.
President Bush's Justice Department appealed that ruling, which landed the case at the Supreme Court again.
But their opponents — including the ACLU — said that while the government's purpose in COPA may be noble, its effects would unconstitutionally restrict the freedom of speech. They also argued that the law would be ineffective, since many Internet content providers are based overseas and thus could not be successfully prosecuted.
The court's majority said that encouraging owners of computers used by minors to get Internet-filtering software was a better solution. Such software “is an alternative that is less restrictive than COPA and, in addition, likely more effective as a means of restricting children's access to materials harmful to them,” Kennedy wrote.
He added: “Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit-card information.”
In a separate concurring opinion, Ruth Bader Ginsburg said she understood the government's reasons for the law. “As a parent, grandparent and great-grandparent, I endorse that goal without reservation,” she wrote. “As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing habits.”
As is often the case in free-speech decisions, the court's usual ideological lines were blurred. A centrist — Kennedy — and one of the court's most conservative members — Justice Clarence Thomas — joined the majority. Meanwhile, one of the court's most liberal members — Justice Stephen Breyer — led the dissenters. He was joined by conservative Chief Justice William Rehnquist, conservative Justice Antonin Scalia, and right-leaning centrist Justice Sandra Day O'Connor.
Writing a dissenting opinion for himself, Rehnquist and O'Connor, Breyer argued that COPA was not written too broadly to avoid undue suppression of free-speech rights. The speech COPA regulates, he said, is limited “to material that does not enjoy First Amendment protection, namely legally obscene material, and very little more.” Breyer said the act's exceptions for material that showed artistic merit satisfied previous court decisions that upheld the government's ability to regulate obscene material.
Breyer said that the alternative solution the majority claimed — encouraging the use of filtering software — was inadequate for several reasons. Among them, he cited the cost of such software. “Not every family has the $40 or so necessary to install it,” Breyer wrote. He also noted that many parents would not be able to ensure that their children — many of whom use the Internet at home while their parents are at work — had not disabled the software, or that they weren't visiting pornographic websites while away from home, using the Internet through non-filtered computers.
In addition, Breyer said, filtering software “lacks precision” and may sometimes block out non-harmful material while allowing some pornographic material to slip through. “Thus, Congress could reasonably conclude that a system that relies entirely upon the use of such software is not an effective system,” he wrote.
In a separate dissent, Scalia argued that the statute would likely prove constitutional, but on much broader grounds than his colleagues in the minority supported. “Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review,” he wrote. “Since this business could, consistent with the First Amendment, be banned entirely, COPA's lesser restrictions raise no constitutional concern.”
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