June 29, 2004 11:19 AM PDT

Supreme Court keeps Net porn law on ice

update A divided U.S. Supreme Court on Tuesday suggested that a federal law designed to restrict Internet pornography violated Americans' rights to freedom of speech, but the court stopped short of a definitive ruling striking down the law as unconstitutional.

The 5-4 ruling upheld an injunction barring prosecutors from filing criminal cases under the Child Online Protection Act, or COPA, until a full trial takes place. COPA restricts the use of sexually explicit material deemed "harmful to minors" on commercial Web sites. Violation of the law can result in civil fines and prison terms.

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What's new:
The Supreme Court upholds a ruling that bars prosecutors from filing criminal cases under the Child Online Protection Act.

Bottom line:
But the law isn't dead: Questions remain about the best way to combat online porn. COPA now goes back to a Philadelphia appeals court for a full trial.

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In its decision, the high court said that a full trial in Philadelphia would permit the case to reflect the "current technological reality" about the state of porn-filtering applications--which means that questions about the ultimate fate of COPA may remain unresolved for two or three more years, while the law's supporters head back to court.

The Bush administration signaled that it would continue to defend the law.

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

Congress enacted COPA in 1998 in response to pressure from antiporn groups, but it was instantly challenged in court by the American Civil Liberties Union and has never been invoked in prosecutions.

The lack of government controls on Internet pornography has permitted the industry to blossom on the Web. A report from Reuters Business Insight in February 2003 calculated that sex-related business represented two-thirds of all revenue generated by online content in 2001 and that it had ballooned to a $2.5 billion industry since then.

In an unusual set of legal proceedings, COPA has been bouncing around between the lower courts and the Supreme Court. A federal judge in Philadelphia struck down the law in February 1999, and the 3rd Circuit Court of Appeals followed suit. But the Supreme Court said in May 2002 that it wanted more analysis from the appeals court, which looked at the law again and promptly said for the second time that it violated the First Amendment.

The majority opinion in Tuesday's decision, written by Justice Anthony Kennedy, suggested that a trial

A "filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America."
--Justice Anthony Kennedy, writing for the majority
may show that filtering software was a more effective way of preventing children from seeing inappropriate material than relying on criminal laws that can't reach overseas. A "filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America," Kennedy wrote.

"Filtering software, of course, is not a perfect solution to the problem of children gaining access to harmful-to-minors materials," Kennedy wrote. "It may block some materials that are not harmful to minors and fail to catch some that are."

Still, he said the Justice Department, which is defending the law, has failed so far to prove that filters are that flawed as an alternative.

Justice Kennedy was joined in his opinion by justices Ruth Bader Ginsburg, John Paul Stevens, David H. Souter and Clarence Thomas.

Dissent: COPA burden is "modest"
A dissent written by Justice Stephen Breyer said COPA "imposes a burden on protected speech that is no more than modest" and should be upheld as constitutional.

COPA "does not censor the material it covers," Breyer wrote. "Rather, it 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."

Breyer was joined in his opinion by Justice Sandra Day O'Connor and Chief Justice William H. Rehnquist. Justice Antonin Scalia wrote his own dissent.

COPA makes it a crime to publish "any communication for commercial purposes that includes sexual material that is harmful to minors, without restricting access to such material by minors."

Material that is "harmful to minors" is defined as lacking "scientific, literary, artistic or political value" and that is offensive to local "community standards." The maximum penalty is a $50,000 fine, six months in prison and additional civil fees.

If COPA is eventually upheld as constitutional, many adult Webmasters could be imperiled unless they redesign their sites. "Teaser" images may disappear, since COPA says Webmasters who employ measures such as credit card verification or require an "adult access code" can't be prosecuted, as these mechanisms would typically keep out minors.

COPA represents Congress' second attempt to restrict sexually explicit material on the Internet. The Supreme Court in 1997 rejected the Communications Decency Act, which covered "indecent" or "patently offensive" material, as unconstitutional.

Plaintiffs in the COPA case include the American Booksellers Foundation for Free Expression, Salon.com, ObGyn.net, Philadelphia Gay News and the Internet Content Coalition. CNET Networks, publisher of News.com, was a member of the now-defunct Internet Content Coalition.

Supporters, opponents will keep fighting
Tuesday's decision provoked sharp reactions from people on both sides in the case.

The ACLU's Ann Beeson, who has spearheaded legal challenges against COPA for the past six years, called the ruling a clear win for free-speech rights on the Internet.

"The status quo is maintained, but that is a huge victory," said Beeson, associate legal director for the ACLU's national office. "Had the Supreme Court not upheld the appeals court decision, it would have been a crime today to display material on the Internet that is freely available on cable television and in R-rated movies."

"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."
--Michael Oxley,
congressman of Ohio

Beeson said she now plans to ask the Department of Justice to agree to drop the case, given what she described as the 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...The facts have not changed, and as Justice Kennedy pointed out, they have swung in our favor since the law was enacted. There are more options in terms of filtering software, and there are two or three laws on the books now that mandate the use of filters in schools and public libraries."

Backers of the law vowed to fight on.

Congressman Michael Oxley, R-Ohio, who co-authored the COPA bill entered in the House of Representatives in 1998, said in a statement that he planned to press the Department of Justice 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," he said. "The pervasiveness of pornography on the Internet is going to be a barrier to its development."

Oxley was unavailable for an interview. But his press secretary, Tim Johnson, said the law is "wildly popular" among constituents in Oxley's district.

"Even Justice Kennedy admitted that filtering is not perfect," Johnson said. "That's something we hear over and over from parents. They say they can't trust filters, and they can't stand around in front of the computer while their children surf the Internet. That's why we focused on criminal penalties in the law. It's a powerful incentive to ensure pornographers don't market smut to children."

CNET News.com's Evan Hansen contributed to this report.

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Supreme Court keeps Net porn law on ice
What in the world is wrong with some of our Federal Judges. How can they, in good conscience, use the First Amendment, (freedom of speech), to protect and allow PORN on the Internet and at the same time restrict children from prayer in school or at an assembly? Isn't praying a form of "free speech"? Additionally, if I elected to say "under GOD" during the Pledge of Allegiance", isn't that my right under the First Amendment?
Posted by dwoerner1 (1 comment )
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Reply
"What in the world is wrong with some of our Federal Judges."

That would depend on where you stand on this issue. Obviously those who are against this law don't think their is anything wrong.

"How can they, in good conscience, use the First Amendment, (freedom of speech), to protect and allow PORN on the Internet and at the same time restrict children from prayer in school or at an assembly? Isn't praying a form of "free speech"?"

Prayer is covered by freedom of religion and freedom of expression. The courts haven't ruled in away that stops children etc from praying on their own. If you want to pray at a baseball game etc you're free to do so. Religion is a personal matter and doesn't need the endorsement of schools etc. Religion is a personal matter and I believe the courts rulings on the matter reflect that. Endorsement by public institutions is completely unnecessary.


"Additionally, if I elected to say "under GOD" during the Pledge of Allegiance", isn't that my right under the First Amendment?"

If you've keep up on that issue you'd know the court allowed "under god" to stay in the pledge in no small part to due to a previous ruling that said people (including school children) can't be compelled to say the pledge.
Posted by unknown unknown (1951 comments )
Link Flag
interesting
They would argue that in your instances its maintaining seperation between church and governement. Which has of course nothing to do with the truth, in which a portion of society wants tear down the moral fabric of society with this filth.

The framers had it right, they would not protect this stuff and either should we. They also had no issues with prayer in schools.
Posted by robanga (47 comments )
Link Flag
A worthless law
as porn from other countries is still widely avaliable on the Internet and such sites aren't bound by U.S law.
Posted by unknown unknown (1951 comments )
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Keeping Minors Safe from Porn is ADULT's responsibility
Hey folks, come on now... It is NOT the responsibility of the government and courts to keep children safe from viewing/accessing porn on the internet, it is the PARENTS and other RESPONSIBLE ADULTS responsibility by installing "Parental Control" filtering software!!! Any adult who gives a child/minor unrestricted and unmonitored access to the internet on a computer, especially one in their bedroom, should be smacked right up side the head! People... you gotta go on line and just LOOK at what your kids can get into when on line. Just go to a search engine and type in any "slang" word for the human reproductive organs. You will shocked, or amazed, at the list you will be presented with (unless that particular search engine has built in filtering. If it does, just try a different search engine. You will then be just 2 or 3 mouse clicks away from viewing human anatomy. If you consider yourself a "responsible" adult, YOU are the one that must protect your minor kids. A simple $30 to $60 "Parental Control" program will work extremely well!!! It's something you just MUST do!!! I have been on line for over 10 years. Before I EVER let my kids on the computer I installed "Cybersitter". It was cheap and very good filtering software. (Still is) The software works by filtering out "sexually explicit" words placed into search engines and those that come in by email and websites. If a web address is entered that the kids have no business going to, they are "redirected" to a "SAFE SITE" like Sesame Street or PBS Kids and others like it. They update the "bad sites" filter 1 to 2 times a week, automatically! And the parents can add sites and phrases to be blocked like the kids name, address, phone number, school they go to. You get the idea. About 4 years ago I installed Symantec's Internet Security. This works even better because it gives the parent MORE control as to what can and can not be seen and has proven 99.99% effective at keeping my kids OUT of not only "Porn" sites but "Hate", "Drugs", "Bomb Making", and many many other "BAD" sites. I've had some parents say "I trust my kids". Ya right! As soon as you are gone or your back is turned they will be right into those "BAD" sites. Don't believe me? Learn how to check the History files. Just check out where your kids have been surfing. Filtering software on a computer is a "Requirement" when kids/minors are online. Look at it this way... If your kids go into a store where adult magazines are sold, the store personnel have either covered up the front covers of the magazines or have placed them in sealed plastic bags. X rated videos are kept "in the back room". If minors get too close, curious or start to pick up the magazines, they are "escorted" away from them by the adults in the store. Now, lets say there are NO adults around in the store and a single kid, or a group of "curious" minors are mulling around that store that has "girlie" magazines. Unmonitored and unsupervised kids. Don't think for a second they won't be right there at the rack looking through the magazines. Just like most of you, I was a kid once and curious too! My brothers and sisters found my dads girlie magazine stash. Yup! As soon as nobody was home, you guessed it! We were right into the magazines "Checkin' 'em out! This went on for MANY years before we were found out. Now, if those magazines were under lock and key and not just in a box in the back closet, we would not have been able to get into them. SAME THING WITH PORN SITES ON THE INTERNET!!! Parents, JUST INSTALL "PARENTAL CONTROL" SOFTWARE and the Porn and other bad sites will be electronically "under lock and key". It really IS that simple!! And yes, blocking software CAN be turned off by accessing the software with a "password" so those adults who wish to view whatever they want can do so. Just remember to turn the "Parental Control" software back on when you are through...
Posted by (1 comment )
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Excellent
I didn't read it all thoroughly, but I believe I catch your drift and I must say that you are correct. It's in no way the government's responsability, it's the parents.
Posted by (26 comments )
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Should not be protected
This garbage is about as worthy of free speech protection as some jihad web site celibrating/encouraging killing non-muslims.

Let's hope the court in Philly has more courage than the five justices here.
Posted by robanga (47 comments )
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Reply
"This garbage is about as worthy of free speech protection as some jihad web site celibrating/encouraging killing non-muslims."

Free speech means you take the good with the bad. If we arbitrally start censoring speech because someone finds it offensive we can't very well call it free speech any more. Well we could but it wouldnt be accurate. There are hate sites all over the net, and more than likely a few suggesting the killing non-muslims.


"Let's hope the court in Philly has more courage than the five justices here."

Censorship isn't courage its cowardice at its worse. Regaurdless of the ruling by the Philly court the lossing side will most likely appeal. This could very well work it's way back to the Supreme Court.
Posted by unknown unknown (1951 comments )
Link Flag
Likes M$
Why i say tath ,example M$ chat have the reason likes that " To help protect you from spam, M$ chat is now available by ... "( you already know taht).
But spam and porn bots never ended .Why not 5 years ago ?
Posted by Serpent (2 comments )
Reply Link Flag
Transmissions of inappropriate content by wire is already illegal and will be enforced before I die or stop litigation against the FCC et al.
Posted by curtisneeley (19 comments )
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