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WASHINGTON -- Although the U.S. Supreme Court has upheld a law designed to protect children from explicit Web content, it still cannot take effect until the issue of ensuring free speech goes another round in a lower court.

The challenge is to find a balance between concerns of those who want to keep surfing safe for kids, and civil rights organizations like the American Civil Liberties Union and the Electronic Privacy Information Center. Those and related groups call Monday's court decision a partial victory, and say they will continue to challenge the law.

"We're pleased the court is hinting that it has some serious problems," says Chris Hansen, senior staff counsel of the ACLU.

David Sobel, general counsel of EPIC, concurs. "It was a very fractured decision," Sobel says. "The court was very skeptical about the legality of this standard."

Long Struggle

The law is the latest in a series of beleaguered attempts to protect children from Web porn and other adult material. Called the Child Online Protection Act, it prohibits posting of content that is considered harmful to minors. Violations carry civil and criminal penalties of up to $50,000 per violation per day, unless access by minors is restricted.

Congress passed COPA in 1998 in an attempt to restore some of the protections in the Communications Decency Act, which was also challenged and eventually ruled unconstitutional. COPA's opponents fear the measure could not only violate First Amendment rights, but also thwart the progress of Internet commerce.

The Child Online Protection Act originated in the Senate Commerce committee with strong bipartisan support, says Pia Pialorsi, Republican press secretary of the Commerce Committee.

"Senators from both sides felt that if parents could monitor their kids at home, schools and libraries needed the technology to help them monitor the kids when they were away from home," Pialorsi says. "That was the purpose of (COPA), to be a tool for parents, not to dictate what should and should not be filtered."

However, COPA opponents won a 1999 injunction in a Pennsylvania district court banning its enforcement based on the court's conclusion that the measure would not pass Constitutional scrutiny. The injunction was upheld by the Third Circuit Court of Appeals in 2000, which will now reconsider the case.

Mixed Decision

Writing the majority opinion on Monday, Justice Clarence Thomas upheld COPA's reliance on "contemporary community standards" as an acceptable means to identify "material that is harmful to minors." The Third Circuit had centered its decision on the theory that community standards could not be applied to the Internet, which is global.

However, eight of the nine Supreme Court justices agreed COPA should be reconsidered by a lower court because of unresolved free speech problems. Until further action by the lower court, Thomas wrote, COPA should remain unenforced.

Only Justice John Paul Stevens said the law should be thrown out. Stevens distinguished between local decency standards and those applicable to the Internet. Communities differ widely in their attitudes toward sex, Stevens argued. Applying different community standards to a universal Internet will "restrict a substantial amount of free speech," he wrote in his dissent.

It is now up to the Third Circuit Court of Appeals to decide if it will rule on the case based on the facts the district court used to grant its preliminary injunction, or if it should remand the case for a full trial.

Legit Sites Lose

If COPA does take effect, legitimate Web sites will suffer, says the ACLU's Hansen. He says the law is broad enough to restrict content that only some communities would consider harmful to children, potentially penalizing sites like Artnet.com, which displays various forms of art, and Obgyn.com, a women's health site.

Banning access by minors by age verification through a credit card check page would be an onerous burden, says Scott Rosenberg, the managing editor of online magazine Salon. The site provides news and commentary, and sometimes runs articles on sexuality or health issues that some communities may consider unfit for children.

"We've never been a Web site that advertises children's content," Rosenberg says. "But we've never put a system in place to ascertain that our readers are over a certain age. For a publisher on the Internet, that requirement would cause all kinds of commercial as well as First Amendment problems."

EPIC's Sobel is confident the ACLU's case against COPA remains strong.

"We don't see yesterday's decision as anything more than a delay of the ultimate outcome, that COPA will eventually be declared unconstitutional," Sobel says.

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