Supreme Court deals death blow to antiporn law

Caption: ACLU attorney Ann Beeson speaks to reporters after Supreme Court oral arguments on Web porn law in this 2001 file photograph.

(Credit: Declan McCullagh)

The U.S. Department of Justice has been trying since 1998 to convince courts that a federal antiporn law targeting sexually explicit Web sites was constitutional.

No longer. On Wednesday, the U.S. Supreme Court rejected prosecutors' last-ditch defense of the Child Online Protection Act, meaning that the law will not be enforced.

COPA was enacted during the anti-Internet porn scares of the late 1990s, in part as a narrower answer to a previous Net censorship law that also met its demise in the courts. Any commercial Web site operator that posts "material that is harmful to minors" faces six months in prison and a fine of up to $50,000.

The American Civil Liberties Union filed suit against the law in Philadelphia, saying the prohibition was so broad and vague that even traditional publishers could face fines and imprisonment. Plaintiffs included Salon.com, which occasionally publishes racy material, the California-based lesbian-gay A Different Light Bookstore, PlanetOut, and a now-defunct coalition that included CNET Networks (publisher of CNET News), The New York Times Co., and Reuters. (A CNET executive testified against the law in January 1999.)

"It is not the role of the government to decide what people can see and do on the Internet," ACLU staff attorney Chris Hansen said in a statement on Wednesday. "Those are personal decisions that should be made by individuals and their families."

As a side note, it was the Justice Department's ongoing defense of COPA in 2006 that led to its subpoena to Google asking for a "random sampling" of 1 million Internet addresses accessible through Google's popular search engine and a random sampling of 1 million search queries submitted to Google over a one-week period.

Since the initial proceedings, the case has bounced around the court system without reaching a resolution. During that time, the Supreme Court handed down two preliminary rulings, once in 2002 and again in 2004.

The first time, it sent the case back to an appeals court with instructions to broaden its legal analysis beyond the law's interaction with community standards; the second time, it wanted a review of whether "technological developments" have affected the law's constitutionality.

The Supreme Court's 2004 ruling against the Justice Department and in favor of the ACLU commanded a narrow 5-4 majority, with justices Stephen Breyer, William Rehnquist, Sandra Day O'Connor, and (separately) Antonin Scalia dissenting.

The majority opinion, written by Justice Anthony Kennedy, upheld a temporary injunction barring prosecutors from enforcing COPA.

It was Breyer's dissent that had some free-speech advocates worried. It said COPA places "minor burdens on some protected material--burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography. There is no serious, practically available 'less restrictive' way similarly to further this compelling interest. Hence the Act is constitutional." Scalia went even further.

But the court didn't seem to want to revisit COPA a third time. Wednesday's ruling was a mere refusal to even hear the case, issued without explanation.

Even among antiporn groups, support for COPA waned as the years progressed, and federal prosecutors focused on obscenity and child pornography.

Another reason for the erosion of support may be that because the law was written so long ago, it's surprisingly limited. It applies only to material delivered "by means of the World Wide Web"--meaning that it doesn't cover peer-to-peer file sharing, the Usenet newsgroups that alarm New York's attorney general, games like Virtual Hottie 2, those naughty things happening in Second Life, videos watched via a third-party iPhone application, or streaming porn viewed through the VideoLAN Client, RealPlayer, or Windows Media Player desktop applications.

[oldmanangry]

http://sethf.com/gore/

[lil-yankee]

Im amazed that some of these readers are still under the bush effect.
Ignorance is never the right way to teach as not knowing means no power. The only reason why sex is so out of control is because of ignorance on what to do or what is it for. We shall all have sex sometime is like a given, so then why not be ready? Why do soldiers carry weapons? to shoot if needed to right?
So if we can all agree that having sex is a given and it will happen why send our soldier out to war without a gun?(knowledge).
And keeping up with the theme, read it out in google and find that most of the internet's success is due in a huge part to pornography, and yes, pornography.
Is our freedom here that is contested, if we as americans dont want to live in socialism then apply your god damn rights. Porn should be there for us all to see, parents should be there to stop children from seeing it. and thats it.
If you as a parent dont want your children watching porn, educate and be a parent, dont be a kid of our goverment, please, other wise move to cuba or venezuela.

[gefitz]

Hmm. What does this mean for CIPA?

[jpmays]

I seriously doubt that this will affect the CIPA program, as this is specifically directed at schools and libraries that received government funding for implementing communications technologies.

[declan00]

It has nothing to do with CIPA/library filtering. Different law, different legal challenge. The Supreme Court upheld CIPA in 2003:
http://news.cnet.com/2100-1028_3-1019952.html

[pithenumber]

I hate CIPA
50 web filters tested, 45 bypassed in less than 5 minutes each, the other 5 in less than 10
Most techniques can be found on Google.

That is how useless web filters are, CIPA does quite little to help kids at school not look at porn. CIPA needs to changed, it is useless in it current form of requiring internet filters.
Easy ways to get past filter 100% chance one/combo of a few of them will work
VPN
Tor
Tether to cell phone
Linux on a Flash drive

[gsmiller88]

Wow...10 years worth of wasted tax money.

[mooney101]

I agree 100%. Whoever wrote this law and laws like this, should have to pay back what was lost. Anyone in that line of work should know that the vague language used would mean the law's death. They probably just pushed it through to get some votes at the time.

[Seaspray0]

It could have been on a larger scale, such as the constitutional ammendment for prohibition followed by the constitutional ammendment repealing prohibition.

[pentest]

Was this an actual ruling or did the court refuse to hear more?

Either way, I am surprised. Too many right wingers on the court for freedom to be able to breath easy.

[declan00]

pentest: from the article: "But the court didn't seem to want to revisit COPA a third time. Wednesday's ruling was a mere refusal to even hear the case, issued without explanation."

[wheel61]

Pentest, don't worry about those right wing folks They will protect you instead of allowing those bleeding heart liberals to move a Hamas operative or Taliban captain in next door to you Oops, I forgot that you are for freedom so you enjoy your new neighbors when they arrive and are out on their terraces early in the morning facing east while kneeling on their prayer rugs And when the "man" comes and knocks on your door and tells you that you have to do the same as they do from now on, ya'll better get on down to WalMart and get your prayer rug before they are all gone!!!!

[Atlas_]

the sewer of online porn is and has been open and out of control since the first days of the web!! Why in the WORLD would any of you expect a court that allows humans to slaughter their own unborn young to a god of "a better opportunity" to slow or even STOP the exploitation of children. We as a Nation are in HUGE trouble.

[Harrison912]

Atlas, I appreciate your comment and couldn't have said it better myself.

As web site owner of safety and security products that includes a keylogger designed to help parents monitor their children's internet usage, I support efforts to keep our children safe on line but I also understand the free speech issue.

Our Nation is in HUGE trouble on many fronts.

[6is9]

Atlas, was it for the sake of brevity you didn't mention the thousands and thousands of children who died between 1991 and 2003 in Iraq as American sanctions caused the infant mortality rate to increase by well over 100%? Maybe it slipped your mind that thousands more children have died in Iraq because the president you might have been tricked into voting for in 2000 lied to you and started an illegal 3 trillion dollar war there? (Of course, on principle you wouldn't have voted to re-elect Bush in 2004, because then the blood would be on your hands, and you would never condone the killing of innocent babies, right?) For brevity on my part, I won't add Afghanistan, or our America's failure to act in sub-Saharan Africa as millions of children are dying there. I also don't have the time to bring up the many thousands of American children who've died as our own infant mortality rate has risen during these years that politicians clearly pandered to anti-abortionists like you. You surely spoke out when you saw those same politicians failing to fund prenatal or postnatal health care for women and families who are uninsured and/or too poor to afford it. So it would be needlessly time-consuming to go into how forcing a mother to work so that she can get health care for her child might mean she has to pay for child care while she works and then, because she has to pay for food AND rent, she has to cut corners on nutrition. Anyway, nobody has to tell you, Atlas, that if a child is mostly raised by people she doesn't really know, or if he has to take care of himself after school when he's older, that that child is more likely to parent a child at a very young age. It?s too obvious to mention that the detrimental effect on society is in part what creates pressure for pro-abortion laws, isn't it? I won't waste my time on the death penalty, either. It's a given you are opposed to it. It's a sin to take the life a human being. We are commanded not to kill. You would never pick and choose, or use one verse of scripture to justify execution and ignore another that condemns it. You know that man?s judgment can be wrong, but God?s can never be. You know that DNA testing has proven the innocence of scores of prisoners on death row. You also know that condoning execution for what might have been a false conviction could imperil your innocence when you stand before your Creator. Indeed I'm sure you don't mind, Atlas, that I took the time to clarify and elaborate for anyone who might read this, your full and consistent advocacy for the sanctity of life. For what God created let know man destroy, huh Atlas?

[Seaspray0]

"I won't waste my time on the death penalty, either. It's a given you are opposed to it."

@6is9. Dude, I live in Texas. http://www.lwvil.org/download/dp_state_statistics.pdf

[make_or_break]

What's this 'we' business? The internet is a GLOBAL entity that transcends borders. This cesspool doesn't start or stop at the outline of the U.S. of A.

You knew someone like 6is9 would have to come out as a Bush-basher and can't see what his beloved 'democats' have also done.

[wheel61]

Hey Atlas, those who truly love God in this Nation are not in trouble, only God's enemies. By the way 6is9, ya'll might want to learn how to correctly study God's word I'm really certain that He would have us take care of those enemies of Christianity that would strap bombs to their own children and send them into Jewish synagogues and Christian churches and then detonate those bombs remotely I firmly believe that is why this Nation at barely past 200 years old is the superpower of superpowers in this world If you truly understood God, you would know that He would not allow this Nation to be a superpower unless we were doing it correctly. So, before you start passing judgement on other people, ya'll better get a better handle on what ya'll are yappin' about!!!!!!

[Lerianis]

It's only a 'cesspool' when you have bought into the BS that sex outside of marriage is 'bad'. Guess what? If it was, 'God' (that imaginary figure who never existed except in the deluded minds of the stupid) would have made us without genitals until we got married.... guess what? WE ARE BORN WITH FULLY-FUNCTIONAL ONES, so it's pretty apparent.... we are SUPPOSED to be having sex from birth or VERY soon afterward, with people older than us, younger than us, etc. based on our own personal attractions.

[millahnna]

I hate to break it to you, but the internet wouldn't exist if it weren't for porn. Seriously.

[Probitas]

Not a fan of porn; am a fan of freedom of speech. I think there are other ways to limit the effects of porn. In the meantime, I bought a copy of this book called, "The Underground Guide to Teenage Sexuality," for myself and my pre-teen and teen. This issue is addressed (among many others) and we're talking about potential harm and consequences with porn, online predators, and other 'electronic age' threats.

[Dalkorian]

Wow, bingo. Ignorance is never the answer. If you teach your kids this stuff exists, it's effects and what you think of it, they won't be caught off guard when they DO encounter it (they likely will somewhere, sometime - if not on the internet then in a magazine, a film, on the street through an open window ...). Protect your kids with intelligence, not bomb shelters of ignorance.

It's refreshing to see someone else get it.

[Lerianis]

What consequences? A freer sexual outlook than you would like? THat's the only 'harm' from porn or having sex very young, as I pointed out to my children and REFUSED to allow people to dictate their sexual mores to them, outside of "Do not force someone into sexual situations with force or the threat of force!"
That is the ONLY sexual morality I taught my children, and it's worked for them quite well.

[skuts]

I have never seen porn on the internet that I didn't go and look for. If you don't want to see online porn, don't look.

[Hey_Radar]

That's amazing that you haven't got infected with spyware that does all those pop-ups with inappropriate material on it. Also I have seen kids go to porn sites by accident by mistyping the URL.

I do think that it should be controlled. Just like how they put black bags around the covers of the magazines, or the movie ratings systems. I don't understand how we can have those controls and not an internet one. Theaters can get fined if they sell a 'R' ticket to a child.

[ryokowerx]

Thats a great idea, Hey Radar. We can apply the same standards to homes! We'll fine the owner of the computer if their kids view porn. I mean, after all, they are providing the means to access pornography just like your theater example. So, therefore, they are liable. We do the same to parents of kids if they skip school so why not the same with the internet?

The ACLU had it right. Its a parenting issue NOT a governmental one. Because the federal government has worked so well in the past when they got involved in private matters...

- James "Getting REAL tired of the 'for the children' crap" S.

[duggerdm]

Perhaps commenters should try to understand that the internet is a globally created process and as such the laws of any one country will not be effective in controlling what appears on it. Expecting our gov. to provide blinders for the ignorant and the intellectually challenged is unrealistic and impossible legality. Basically if you are too time, energy or intellectually limited to learn how to use the internet -it's available spam and spy ware counter measures, you might consider just reading the news paper.

[Hey_Radar]

I'm being reasonable to it. I'm just saying they can put some sort of 'standards' around it. Such as some sort of tag that embedded in the site that says "mature" so that you can set your computer to block it.

Even if it is just the main page says "mature audiences only" that you have to click to continue. At least you aren't slapped in the face with it right away. And its not just for the children. I wonder how many marriages it would have saved.

I know it isn't perfect, but as they say "Locks/blocks are just to keep the honest people honest".

[Lerianis]

Hey_Radar... they already have that. Most adult sites already USE that, per ICRA. Just because YOU are too stupid to use an internet filter or to realize that you are NEVER going to keep your children from porn if they truly want to view it.... don't force your 'standards' on the rest of us. It just infringes on OUR rights.

[Len Bullard]

Phil Rosedale at Linden Labs announced that LL would be working to remove the separation between adults and children in Second Life because it limits LL's access to education markets.

http://www.virtualworldsnews.com/2009/01/rosedale-second-life-should-drop-age-divisions.html

[AXG]

It is not the role of government to decide whether one person is allowed to murder another. Those are personal decisions that should be made by individuals and their families.

[declan00]

Is an adult watching other adults engaging in a consensual activity without any clothes the same as an adult murdering someone else, which presumably means *without* their consent?

[Ex-nuke]

The government does not and cannot control whether or not you murder someone, the best they can manage is to bring you in front of a jury and punish you after the fact if you are found guilty. I'm sure you would like for the "government" to look after you the way your parents did when you were a child but it's time to grow up.

[mniemi]

Pop-ups? Spyware? Hey radar, you don't need government protection, you just need Firefox. I haven't had a pop-up in years.
Our legislatures are always ready to criminalize any type of behavior they dislike, because it makes them look tough, and as we all know, toughness solves every problem. Just like the war on drugs, we can address this issue through vast infusions of taxpayer money. The economic growth of the prison industry depends on it.

[krylowski]

Am I reading this correctly; shouldn't children BE protected from pornography not the other way around. Has the ACLU completely lost their minds..................upholding the rights of criminals was bad enough but now child molestors. Our Supreme court upheld this nonsense ????

[m2iCodeJockey]

@krylowski
Please be more alert.
No one is againsts protecting your children.
The law was too vague to be enforced.
It was doing a nice job defending your kid against the 'dreaded' New York Times (legitimate research.)
It was not doing anything to defend your kid against peer-to-peer camera networks (actual interaction with other people.)

The government should not dictate what can and cannot be published, especially in a way that makes it a publishers responsibility to control "who has access to what." Such is covered in the Constitution and any more impunes our freedom when interacting with other adults.

Control of exposure and education about the world IS and SHOULD BE the responsibilty of parents.

It may sound strange but, please don't react, just think logically: Any argument you can raise as "moral" rather than having a "definably physical mechanism" is a direct attempt to impose your religious veiws on others which is also covered...

[chris11-1]

@Lerianis

You are so right about sexual moralities and such. Being a sixteen year old with parents that are extremely overbearing when it comes to anything to do with sex is borderline unbearable. For instance, if a friend comes over who happens to be a girl, we are not allowed in my room without supervision, she is not allowed over past ten, and they hover incessantly.

It's downright embarrassing to have your parents trying to cram their morals down your throat. They should KNOW that I'm not the type to do things with someone I really don't know too well.

I envy your children in the fact that they're probably living much freer, open lives.

My parents once tried to use web filtering on me. They wanted to limit me to two hours a day. I simply used a proxy server on my computer and was around their block within seconds. I do the same at school. If I need to access a resource that is blocked stupidly (i.e. legitimate news sites that happened to run an article that ran afoul of the censors). This kind of thing seems to be something that a third world country would do.

If we don't wake up FAST to the fact that not all teenagers are completely sexually amoral, we will have a really bad situation on our hands. We need to stop "protecting" them and start educating them and most importantly, letting them live their lives for themselves!

[serralles2]

Ther are many ways to keep your "safe" the website blocking on you antivirus program, windows os and even on your cable internet conection. These a personal choices and should be kept that way. Let us not return to the 1950's and McCarthyism. Our energy should better spent keeping your kids out of drugs and gangs which I think is a bigger problem than porn on the internet.

[nikolas.clark]

Just a couple comments.
Really what i believe is that the government(i'm not American but this applies across the board) is that they are really not different from us, in fact they are us! They are made up of us and really are trying to do the best for us. Now parents really should not "deny" their kids access because it means that the kids already want it. Your kids are really an extension of you and your culture and really if you explain things they way they are and the pros and cons they will make the logical decision, not allowing it just will make them want it more (Cuban cigars anyone?). Regardless the web is so well, interconnected, that its logistically impossible to keep it all away. IN regards to the law , suspending the law did nothing other than save people who were not really at fault but it did nothing to actually combat the problem.

@Lerianis: Shame on you for changing issues. The REASON pedifiles are sent to jail for what they do, is not because their urges are right or wrong, but because you are ADULTS. You have the ability to sway what they thing SO easily, you could do whatever you wanted with whoever you wanted. Not to mention they have no ability to protect themselves if you don't get your way. Homosexuality is one thing, its consensual, "pedosexuals" however are another. The reason children are not allowed to vote is because they do not have full ability to think for themselves, they think through others, their parents and other controlling bodies, not to mention a lack of full cognitive development . SO there is no way that that is fully consensual in any manner.

And for the record i am underage, for the moment, and do look at porn. The keeping minors out of porn is similar to my issue with Lerianis, we do not have full ability to think and act for ourselves and can be EASILY exploited so it should never be allowed. We should keep minors out of porn as much as possible, not because wanting have relations with underage people or that any sexuality is wrong but the possibility of exploitation is so high.

[Mister-BIGMOUTH]

Don't listen to ANYTHING Lerianis has to say, he is a self-proclaimed PEDOPHILE (pedo-sexual by HIS words, both words mean the same thing as far as any normal human being is concerned.)

Read what he typed here:


http://news.cnet.com/8301-13578_3-10149435-38.html?tag=commProfileMain;profileBot

http://news.cnet.com/8301-19518_3-10145400-238.html?tag=commProfileMain;profileBot

http://news.cnet.com/8301-13880_3-10142319-68.html?tag=commProfileMain;profileBot

http://news.cnet.com/8301-19518_3-10142096-238.html?tag=commProfileMain;profileBot

http://news.cnet.com/8301-13860_3-10084345-56.html

http://news.cnet.com/8301-10784_3-9945915-7.html

http://news.cnet.com/8301-13578_3-10064738-38.html

[Preachameign]

I appreciate people that view the picture as a whole, and not as a fragmented scene. I would love to speak with you more about the comment that you have written. I am new here, and do not know if I will find my way back here, but here is an email address to catch me at: [e-mail] Thanks and blessings...Preach

[77thst]

Every man I have been involved with has turned out to be a pornography addict. (Mostly men?s magazines and now, teen girls!! on the soft corn internet sites. These men have all mistreated me and made me feel like a loser. People would always tell me I was too pretty and sweet for these men, who turned out to be addicted to soft-core porn. This has succeeded in destroying much of my respect for men and has given me a lower quality of life. Another bad is that good men suffer because bad ones have made some women afraid of all men