- The Washington Times - Tuesday, May 14, 2002

The Supreme Court ruled yesterday that Congress' attempt to protect children from Internet smut is not unconstitutional simply because it imposes standards of the nation's most conservative communities.
The 8-1 decision threw out the American Civil Liberties Union's summary victory in the lower courts but left in place an injunction against enforcing the 1998 Child Online Protection Act (COPA) until lower courts re-examine the effect of free-speech protections on it.
"We hold only that COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment," the court said in an opinion written by Justice Clarence Thomas.
Not all the justices agreed with Justice Thomas' reasoning, but the bottom-line judgment was supported by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Anthony M. Kennedy, Antonin Scalia, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Three other opinions explained the fractured reasoning.
Justice John Paul Stevens was the sole holdout, saying the Internet puts too much power in one community's standard.
COPA allows juries to decide whether "the average person, applying contemporary community standards, would consider certain materials prurient." The ACLU says it allows the most restrictive tiny community to govern larger cities such as Las Vegas, Hollywood and New York.
"Just as the court has struck down other laws that attempt to reduce the adult population to reading only what is fit for children, we are confident that the court will ultimately strike down this law," said Ann Beeson, the ACLU lawyer who argued the case at a November hearing.
"If a prurient appeal is offensive in a Puritan village, it may be a crime to post it on the World Wide Web," Justice Stevens wrote. COPA adopted the "community standards" test the Supreme Court imposed in its 1973 Miller v. California decision.
The lopsided judgment was one of two rulings rejecting First Amendment challenges to laws that rein in pornography merchants.
The second a 5-4 vote upholding Los Angeles' attempt to control "sex superstores" allows use of a 1977 study showing that such businesses are magnets for crime. The decision allowed a ban on more than one "adult entertainment" business within a building.
"Los Angeles may reasonably rely on a study it conducted some years before enacting the [law] to demonstrate that its ban on multiple-use adult establishments serves its interest in reducing crime," the principal opinion said.
The ACLU challenged the Internet law on behalf of artists, sex therapists, salon.com, planetout.com, bookstore Web sites and the Philadelphia Gay News, arguing that sanitizing Internet surfing for children violates an adult's right to see or buy legal sexual material.
"The court clearly had enough doubts about this broad censorship law to leave in place the ban, which is an enormous relief to our clients," said Miss Beeson.
The Justice Department greeted the decision with a promise to keep fighting, but the best sense of its limitations came from anti-pornography leader Jay Sekulow. He complained that it will remain difficult to protect children younger than 17 from offensive sexual materials.
"It is troubling that the court determined that there may be other constitutional concerns about the law," said Mr. Sekulow, chief counsel of the American Center for Law & Justice. "At a time when the pornography industry seems to be gaining ground in securing constitutional protections, it is both disturbing and frustrating that it is becoming increasingly difficult to provide legal protections for children against online pornography."
Justice Department spokeswoman Barbara Comstock said the government is pleased and vowed to continue efforts to "keep our nation's children safe from viewing the pornography for sale on the Internet."
"Congress carefully drafted the law to put Internet pornography on the same footing as material offered for sale in bricks-and-mortar bookstores or convenience stores, where children are protected from inadvertent viewing because magazines are wrapped in brown paper or are kept behind the counters," she said.
Under COPA, enacted after the court unanimously struck down the 1996 Communications Decency Act, it was a crime punishable by six months in jail and fines up to $150,000 a day for placing harmful material within easy reach of children on the Internet. It prescribes a system of numeric codes and credit cards for adults logging into a sex Web site.
In April, the high court rejected efforts to control computer-simulated child pornography under a 1996 law making it illegal to portray young children in sexual situations.
In other actions yesterday the court:
Turned away a request to decide how Julie Mabus, ex-wife of former Mississippi Gov. Ray Mabus, can sue the Episcopal Church and a priest on negligence charges. The decision allows Mrs. Mabus to pursue her state court charge that the Rev. Jerry McBride, who married the Mabuses 11 years earlier, secretly colluded with the governor to tape his counseling session about her sexual affair. The tape was used in divorce court.
Departed from a line of decisions expanding states' protection against lawsuits with a unanimous ruling that Georgia waived its constitutional protection against lawsuits by invoking federal court authority when Paul D. Lapides, a professor, sued on grounds that the state placed sexual harassment charges in his file.
Refused to allow the Knights of Columbus to continue its 80-year tradition of displaying a Christmas Nativity scene on Battle Green, a historic public park in Lexington, Mass.

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