The U.S. Supreme Court on Tuesday sided with a lower court injunction against a law intended to protect children from sexually explicit material posted online, saying the law is likely unconstitutional because less restrictive ways of shielding children from pornography are available.
The Supreme Court, in a 5-4 ruling, upheld the Third Circuit Court of Appeals’ injunction against enforcing the Child Online Protection Act (COPA) of 1998, which allows for a fine of US$50,000 per day and a six-month prison sentence for posting online materials that are “harmful to minors.” The Supreme Court’s ruling sends the case back to the lower court to decide whether the law violates the First Amendment of the U.S. Constitution.
The case that challenged the law, Ashcroft vs. the American Civil Liberties Union (ACLU), pitted U.S. Attorney General John Ashcroft against the civil liberties group, representing several publications, including Web sites that include information on sexually transmitted diseases. Among the publications the ACLU represented in the case were OBGYN.net. PlanetOut Corp., Philadelphia Gay News and Salon.com.
Filtering software, as well as a law against misleading domain names and a law establishing a child-safe dot-kids domain, are less restrictive ways to protect children from sexually explicit materials, argued Justice Anthony Kennedy, writing for the majority. New technological methods may have improved filtering software since the law passed in 1998, Kennedy wrote.
“There is a serious gap in the evidence as to the effectiveness of filtering software,” Kennedy wrote. “The technology of the Internet evolves at a rapid pace.”
Kennedy argued that filtering software was likely to be more effective than COPA because COPA doesn’t protect children against Web sites published outside the U.S.
Civil liberties and other groups cheered the Supreme Court’s ruling, which advocated that parents voluntarily use filtering software to protect children. The court majority did not advocate that the U.S. government require filters to be used in places such as public libraries, noted Robert Corn-Revere, a partner in the Davis Wright Tremaine LLP law firm.
“The court stressed that parents are the ones that have the primary responsibility here,” said Corn-Revere, who’s represented free speech advocates in Internet-related cases. “The message here is, the government is not our parent, the parent is the parent.”
Justices dissenting from the majority opinion argued that the law would simply require publishers of pornographic materials to hide their content behind age-verification screens. Web sites providing information on sexually transmitted diseases or sex education would not be covered by the law, because the law only outlaws materials that lack serious literary, artistic, political or scientific value for minors, wrote Justice Stephen Breyer in his dissent.
“The Act at most imposes a modest additional burden on adult access to legally obscene material,” Breyer wrote.
COPA is the third attempt by Congress to protect children from pornography after the Supreme Court struck down two earlier laws, the Communications Decency Act and the Child Pornography Prevention Act. COPA defined “material that is harmful to minors” as “any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene” or that an average person, applying contemporary community standards, would find obscene.
Opponents of the law argued it was overly broad and would in essence outlaw all adult-theme materials on the Internet, including sex advice columns and sexual health-related information, as Web sites attempt to avoid fines and jail time.
The ACLU praised the Supreme Court’s decision. “Today’s ruling from the court demonstrates that there are many less restrictive ways to protect children without sacrificing communication intended for adults,” said Ann Beeson, ACLU associate litigation director, in a statement. “By upholding the order stopping Attorney General Ashcroft from enforcing this questionable federal law, the court has made it safe for artists, sex educators, and web publishers to communicate with adults about sexuality without risking jail time.”
The U.S. Department of Justice (DOJ) did not immediately respond to a request for comment on the ruling. Representative Michael Oxley, the sponsor of COPA, promised to continue working with the DOJ to find a way to shield children from obscene materials online.
“I don’t think that pornographers have any more right to shove their smut into the faces of children in cyberspace than they do at the corner newsstand,” Oxley, an Ohio Republican, said in a statement. “Larry Flynt can’t set up in front of a news store handing out free copies of Hustler to minors, and the operators of pornographic Web sites shouldn’t be allowed to entice a kid with a teaser page. I’m tired that the flesh merchants keep hiding behind this fig leaf of artistic expression. What they peddle is porn, plain and simple.”
If the law hadn’t been challenged, a workable solution would now be in place, Oxley added. “Parents wouldn’t be afraid to leave their kids alone in the room with the computer on. The pervasiveness of pornography on the Internet is going to be a barrier to (Internet) development,” he said. “Congress worked very hard on COPA to strike a reasonable balance between protecting our children and not infringing on freedom of expression.”