- The Washington Times - Wednesday, June 30, 2004

The Supreme Court yesterday barred the Justice Department’s enforcement of a law aimed at keeping Internet pornography from children, saying it was likely unconstitutional when remanding it to a federal court for a new trial to resolve the issue.

The high court, in a 5-4 decision, upheld an injunction against enforcing the Child Online Protection Act and sent it back to the U.S. District Court in Philadelphia for a trial to consider changes in technology and the law since its 1998 adoption.

“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 M. Kennedy wrote, adding that COPA “presumes that parents lack the ability, not the will, to monitor what their children see.

“By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties,” he said.

Justice Kennedy was joined by Justices Ruth Bader Ginsburg, John Paul Stevens, David H. Souter and Clarence Thomas, who agreed that holding a new trial in the matter would allow further discussions on what technology, if any, might allow adults to see and buy material legal for them while keeping it out of the hands of children.

Writing for the minority, Justice Stephen G. Breyer said COPA “imposes a burden on protected speech that is no more than modest,” it did not act as a censor for all materials and it should be upheld as constitutional.

Justice Sandra Day O’Connor and Chief Justice William H. Rehnquist joined the dissent, and Justice Antonin Scalia wrote his own dissent.

Justice Breyer said the law “requires providers of the ‘harmful to minors’ material to restrict minors’ access to it by verifying age. They can do so by inserting screens that verify age using a credit card, adult personal identification number or other similar technology.

“In this way, the act requires creation of an Internet screen that minors, but not adults, will find difficult to bypass,” he wrote.

The ruling in an appeal by the Justice Department and Attorney General John Ashcroft prevents prosecutors from filing criminal cases under COPA, which restricts and sets civil and criminal penalties for displaying sexually explicit material deemed “harmful to minors” on commercial Web sites.

The act was signed into law by President Clinton and has been endorsed by the Bush administration, which said it would continue to defend it. COPA was enacted in response to pressure from anti-pornography organizations, but challenged in court by the American Civil Liberties Union.

“Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped,” said Justice Department spokesman Mark Corallo.

“Congress has repeatedly attempted to address this serious need and the court yet again opposed these common-sense measures to protect America’s children,” Mr. Corallo said. “The department will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web.”

COPA, which never took effect, set fines up to $50,000 for placing material “harmful to minors” on the Internet.

The ACLU had argued that COPA restricted too much material that adults could legally see and buy. Yesterday, ACLU lawyer Ann Beeson said she was “pleased” with the ruling, adding that “the status quo is still with us and the court made it safe for artists, sex educators and Web publishers to communicate with adults without risking jail time.”

She said she plans to ask the Justice Department to drop the case, given the Supreme Court’s “very strong indication” that the law violates the First Amendment.

“The government has wasted enough tax dollars trying to defend twice a law that the court has said twice is unconstitutional,” she said. “The facts have not changed, and as Justice Kennedy pointed out, they have swung in our favor since the law was enacted.”

A federal judge in Philadelphia struck down the law as unconstitutional in February 1999 and the U.S. Circuit Court of Appeals for the 3rd Circuit in Philadelphia upheld that decision. The Supreme Court heard the case in May 2002, but said it wanted additional analysis from the appeals court, which again reviewed the law and for a second time, ruled that it violated First Amendment guarantees.

Rep. Michael G. Oxley, Ohio Republican who co-authored COPA, said he planned to press the Justice Department to “mount an aggressive case” on behalf of the law.

“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,” Mr. Oxley said. “The pervasiveness of pornography on the Internet is going to be a barrier to its development.”

Sen. Patrick J. Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee and the only vote against COPA when it passed in the Senate 98-1 said yesterday’s ruling “echoes the doubts expressed by some of us in Congress years ago when this legislation was being considered.

“I opposed this law as being constitutionally flawed and warned it would have a difficult time withstanding judicial review because Congress had failed to consider less restrictive means of protecting children from harmful online materials, such as filtering technology,” Mr. Leahy said.

He said six years after the law was enacted, it had done nothing to protect children online, “while generating interminable litigation that has already produced two Supreme Court decisions.”

“The task before us is finding legislative solutions that do not just lull parents into a false sense of security in the short term, but that can withstand the test of time and the scrutiny of the courts,” he said. “The Internet was born here, and the world watches closely whenever we move to regulate it.”

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