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Court to Hear Case on Web Porn

By Charles Lane
Source: Washington Post
Date: October 15, 2003

Cyber Crime Law to Protect Children Is Stalled by First Amendment Issues

The Supreme Court announced yesterday that it will decide whether a 1998 law designed to shield children from Internet pornography violates the First Amendment, propelling a six-year-old legal battle over free speech in cyberspace into what might be a conclusive phase.

The Child Online Protection Act (COPA), passed by Congress and signed by President Bill Clinton, makes it a crime for a commercial Web site to put material that is "harmful to minors" where children younger than 17 can gain access to it, unless the site has made a good faith effort to screen out all but adult users.

COPA has never taken effect, however, because opponents led by the American Civil Liberties Union (ACLU) challenged it in court, winning judicial orders that blocked its enforcement on the ground that it would force Web publishers to give up some of their constitutional rights to communicate adult material to adults.

The lengthy struggle has illustrated how difficult it can be for Congress and the president to respond to public concern about the Internet's effect on children without running afoul of the Constitution -- and how difficult it can be for courts to define the precise meaning of the Constitution in the fast-changing world of the Internet.

COPA is the successor to a 1996 law, the Communications Decency Act (CDA), that sought to ban "indecent" messages aimed at people younger than 18 as well as "patently offensive" sexually explicit communications within the reach of such youngsters. Unlike COPA, the CDA applied not only to commercial Web sites, but also to nonprofit sites and chat rooms.

When the Supreme Court quickly struck down that law, Congress countered with the more limited COPA.

The ACLU went to court to block COPA, too, joined by plaintiffs including the online magazine Salon and OBGYN.net, a women's health site.

The U.S. Court of Appeals for the 3rd Circuit struck down the law, ruling that it relied on "community standards" to define what sexual material would be harmful to minors -- effectively giving the most conservative community in the country a veto over all others.

The Bush administration appealed, and the Supreme Court itself considered COPA last year, with inconclusive results. A divided court could agree only to send the case back to the 3rd Circuit for reconsideration of the reasons it gave for invalidating the law.

The Philadelphia-based 3rd Circuit has since rendered a new judgment, avoiding the "community standards" argument but finding that COPA is imprecisely drafted and places unconstitutional burdens on adult access to material on the Web. The Bush administration appealed.

The case is Ashcroft v. ACLU, No. 03-218. Oral arguments will take place early in 2004^; a decision is expected by July.

Separately, the court agreed to hear the Bush administration's appeal of a lower court's ruling barring federal agents from searching the gas tanks of vehicles crossing the U.S.-Mexico border without a "reasonable suspicion" that there is contraband inside.

The case began in February 2002, when U.S. Customs officers disassembled the gas tank of Manuel Flores-Montano's car, finding 37 kilograms of marijuana inside.

Last year, the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled that this was a non-routine search that could not be made without a reasonable suspicion that a crime was in progress. The 9th Circuit would have upheld Flores-Montano's conviction on smuggling charges anyway, but the federal government has continued to fight the ruling because it claims an inherent right to inspect everything that crosses the country's international boundaries, without preconditions.

"The Ninth Circuit has adopted a rule that is wholly at odds with the government's urgent interest in preventing the smuggling of contraband and persons across our borders," Solicitor General Theodore B. Olson told the court in his appeal petition. Olson noted that 25 percent of all drugs seized along the Southern California border were stashed in gas tanks.

The case is U.S. v. Flores-Montano, No. 02-1794. Oral argument will take place early in 2004^; a decision is expected by July.

Original article

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