Computer Crime Research Center


Supreme Court Says Porn Law Likely Violates First Amendment

Date: July 02, 2004
Source: Computer Crime Research Center
By: Robert T DeMarco

Source Wall Street Journal (subscription) and Associated Press

WASHINGTON -- The Supreme Court ruled that a law meant to punish pornographers who peddle dirty pictures to Web-surfing kids is probably an unconstitutional muzzle on free speech.

The high court divided 5-to-4 over a law passed in 1998, signed by then-President Clinton and now backed by the Bush administration. The majority said a lower court was correct to block the law from taking effect because it likely violates the First Amendment.

The court didn't end the long fight over the law, however. The majority sent the case back to a lower court for a trial that could give the government a chance to prove the law doesn't go too far.

The majority, led by Justice Anthony M. Kennedy, said there may have been important technological advances in the five years since a federal judge blocked the law.

Holding a new trial will allow discussion of what technology, if any, might allow adults to see and buy material that is legal for them while keeping that material out of the hands of children.

Justices John Paul Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg agreed with Justice Kennedy.

The American Civil Liberties Union and other critics of the law said it would restrict far too much material that adults may legally see and buy, the court said.

The law, which never took effect, would have authorized fines up to $50,000 for the crime of placing material that is "harmful to minors" within the easy reach of children on the Internet. It also would have required adults to use access codes and or other ways of registering before they could see objectionable material online.

For now, the law, known as the Child Online Protection Act, would sweep with too broad a brush, Justice Kennedy wrote. "There is a potential for extraordinary harm and a serious chill upon protected speech" if the law took effect, he wrote.

He said that filtering software "is not a perfect solution to the problem of children gaining access to harmful-to-minors materials." He said that so far, the government has failed to prove that other technologies would work better.

The ruling was the last of nearly 80 cases decided in a busy court term. The year's marquee cases involving presidential power to dealing with suspected terrorist were announced Monday, and mostly represented a loss for the Bush administration.

Tuesday's pornography ruling is more nuanced, but still a blow to the government. It marks the third time the high court has considered the case, and it may not be the last.

Congress had tried repeatedly to find a way to protect Web-surfing children from smut without running afoul of the First Amendment.

The justices unanimously struck down the first version of a child-protection law passed in 1996, just as the Internet was becoming a commonplace means of communication, research and entertainment.

Congress responded by passing COPA, saying the new law met the Supreme Court's free-speech standards. The American Civil Liberties Union challenged COPA immediately, arguing that the replacement law was every bit as unconstitutional as the original. The law has been tied up in the courts ever since.

In dissent, Chief Justice William H. Rehnquist and justices Sandra Day O'Connor, Antonin Scalia and Stephen Breyer said the law is constitutional and should be upheld.

Restrictions about who would be covered by the law and how it would be enforced "answer many of the concerns raised by those who attack its constitutionality," Justice Breyer wrote.

The ACLU challenged the law on behalf of online bookstores, artists and others, including operators of Web sites that offer explicit how-to sex advice or health information. The ACLU argued that its clients could face jail time or fines for distributing information that, while racy or graphic, is perfectly legal for adult eyes and ears.

Material that is indecent but not obscene is protected by the First Amendment. Adults may see or purchase it, but children may not.

That is a tricky rule to enforce in the murky and anonymous reaches of the Internet. Most Web sites, chat rooms and other Internet venues are available to adults and minors alike, and commercial transactions do not take place face to face.

The Internet also presents a difficulty in translating old rules about what children could see and what they could not.

In writing the 1998 law, Congress said "contemporary community standards" should guide what is harmful to children. Civil liberties defenders said that the standard would lead to the most prudish place in America having veto power over the most liberal, because Internet material is available to them both.

The ACLU also said the community standards idea would force legitimate web site operators to self-censor, for fear of running afoul of someone's idea of what is inappropriate for children.

The Third U.S. Circuit Court of Appeals agreed, and ruled that the standards issue alone made the law unconstitutional. The Bush administration appealed to the Supreme Court, which delivered a partial victory for the government two years ago. The court said at that time that, by itself, the community standards issue did not make the law unconstitutional. The justices then sent the case back for a fuller examination of the other free speech objections raised by the ACLU.

The Philadelphia-based federal appeals court then struck down the law a second time, on much broader First Amendment grounds, and the administration again appealed to the Supreme Court.

(Ashcroft v. ACLU)

Copyright © 2004 Associated Press

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About the Author
Robert T DeMarco is CEO of IP Group in Herndon VA. IP Group offers software communication tools for use on the Internet. These include: PowerTools, Watch Right, Always on Time and IM Frame. Mr. DeMarco is the author/editor of several Weblogs and is also a member of the High Tech Crimes Industry Association (HTCIA). Mr. DeMarco spent 20 years on Wall Street during his second career.
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