• PC World
• »Tech Industry

WASHINGTON -- A narrowly divided Supreme Court ruled this week that a law meant to protect children from pornography online probably is an unconstitutional violation of free speech.

By a 5-4 vote, the justices upheld an appeals court injunction against the Child Online Protection Act, which would criminalize the unrestricted display of "content harmful to minors" by commercial Web sites. COPA requires that sites containing adult content verify the age of users before allowing access, and contains penalties of up to $500,000 and five years in jail for violators.

The decision said the threat of criminal penalties and the proof of age requirements may have a chilling effect on free expression on the Web, and may not be effective because many sites that may be unsuitable for children originate outside the jurisdiction of U.S. laws.

"This is a significant victory for Internet free speech and a clear statement by the court that technology and user control are preferable to legal statutes in controlling content that is harmful to minors," says Jerry Berman, president of the Center for Democracy and Technology. "What the court said today is that the government has to prove that COPA's method of protecting kids is more effective and less restrictive to free speech than filtering technology."

Ongoing Appeal

The American Civil Liberties Union, on behalf of a number of commercial Web sites, filed a court challenge when Congress passed COPA in 1998. The ACLU was granted an injunction that has withstood several challenges.

In the strictest terms, Berman says, the Supreme Court decided the Appeals court had not abused its discretion in allowing the injunction against COPA, and placed a heavy burden on the government to prove the law is constitutional.

If the government's attorneys can manage that--and the opinion written by Justice Arthur Kennedy makes it clear that the chances are very low--the case may arrive in front of the Supreme Court again.

Writing for the majority, Kennedy argued that less restrictive and more effective means are available to protect underage Internet users, such as voluntary filtering and blocking software.

The opinion also called for debate in a lower court to give the government a chance to prove that COPA's requirements and threat of criminal penalties are the best way to protect children from pornography.

Joining Kennedy were Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens, and Clarence Thomas. Dissenting were Chief Justice William Rehnquist and Justices Antonin Scalia, Sandra Day O'Connor, and Stephen Breyer.

Uncertain Future

Even proponents of COPA acknowledge that the law's chances in the lower courts are slim.

"We now have a circumstance where the court has clearly set a high legal bar for the government to prove COPA's constitutionality in the lower court," says Colby May, lead attorney for the America Center for Law and Justice, a public interest law firm. The ACLJ filed a friend-of-the-court brief representing 13 members of Congress, including one of the co-sponsors of COPA, Representative Earnest Istook, Jr. (R-Oklahoma).

"We are sorry the court has removed this protection for children and given a pass to pornographers," May says.

The case, known as Ashcroft vs. ACLU, has now been heard five times since the ACLU filed its injunction. The injunction was twice affirmed by the by the Appeals court of the Third District, and has now been heard twice by the Supreme Court, which sent the case back to the Appeals court both times.

"Today's ruling from the Court demonstrates that there are many less restrictive ways to protect children without sacrificing content intended for adults," the ACLU says in a statement.

"By upholding the order stopping Attorney General [John] Ashcroft from enforcing this questionable federal law, the court has made it safe for artists, sex educators, and Web publishers to communicate with adults about sexuality without risking jail time," the statement says.

"The most important thing here is that the first amendment still applies in cyberspace," says Elliot Mincberg, general counsel for People for the American Way, a Washington-based liberal watchdog group. "This appears to be another case where Congress has passed legislation and worried about its constitutionality later."