Supreme Court partially upholds law to shield children from online smut

ANNE GEARAN= Associated Press Writer
Monday, May 13, 2002
©2002 Associated Press

The Supreme Court partly upheld a law intended to shield children from online pornography, but said there are unresolved free speech questions that prevent the law from taking effect now.

The American Civil Liberties Union had challenged the law as unconstitutional, claiming that in protecting children the Child Online Protection Act also violates the rights of adults to see or buy what they want on the Internet.

A divided Supreme Court said that the law's use of what it calls "community standards" to define what is harmful to children does not by itself make the law unconstitutional, as a lower federal appeals court ruled.

But the court went on to say that there are other potential constitutional problems with the law that were not addressed by the lower court.

Without taking a position on those other potential problems, the high court threw out the lower court's ruling and sent the case back for further review.

The high court action means the 1998 law is still on hold, and the government is barred from enforcing it.

The ruling is a partial victory for the Bush administration, but neither side got what it really wanted.

The law, known as COPA, makes it a crime to knowingly place material deemed harmful to children within their easy reach on the Internet. Violators may be fined up to $50,000, and sentenced to six months in jail.

The law also requires adults to use access codes and or other ways of registering before they could see objectionable material online.

The ACLU challenged the law on behalf of artists, sex therapists and others who post legitimate, if risque, material on the World Wide Web.

Eight justices agreed that the case should be sent back to the 3rd U.S. Circuit Court of Appeals for a closer look, although they differed in their reasons. Only Justice John Paul Stevens dissented.

"The scope of our decision today is quite limited," Justice Clarence Thomas wrote for a five-member court majority. "We hold only that COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad," in violation of the First Amendment, Thomas wrote.

He pointedly said the court would take no position on the ACLU's claims that the law is unconstitutionally broad and vague for reasons apart from community standards.

"Prudence dictates allowing the court of appeals to first examine these difficult issues," Thomas wrote.

Stevens said the appeals court acted correctly, and that the entire law should be struck down as unconstitutional.

Although the court has previously used the concept of local community standards to evaluate potentially offensive material, the same standard cannot be applied to the global Internet, Stevens argued.

"In the context of the Internet ... community standards become a sword, rather than a shield. If a prurient appeal is offensive in a Puritan village, it may be a crime to post it on the World Wide Web," Stevens wrote.

The law was written as a replacement for a 1996 statute, the Communications Decency Act, that the Supreme Court unanimously struck down as unconstitutional in 1997.

Congress had admirable intentions in trying to help parents keep children away from the growing volume of salacious and pornographic material online, the court said then.

Where Congress went wrong, the court said, was in making the law so broad that it covered pornographic material that adults have the right to see, as well as nonpornographic sexual material.

Congress tried again a year later, and although the second attempt would impose fewer restrictions, civil liberties groups challenged it on the same First Amendment grounds the high court found persuasive before.

The case focused this time on how to reconcile the ways of the freewheeling Internet with laws and court precedents from an era that assumed pornography was a tangible thing, such as a girlie magazine that could be wrapped in paper or hidden behind the store counter.

Material that is indecent but not obscene is protected by the First Amendment. Adults may see or purchase it, but children may not. For the owner of the corner store, it is relatively easy to sell to adults but not to children. The inherent anonymity of the Internet, and the freedom of movement it offers, make it difficult to offer adult material only to adults.

In writing the 1998 law, Congress said "contemporary community standards" should guide what is harmful to children. Civil liberties defenders said, as Stevens did, 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 website operators to self-censor, for fear of running afoul of someone's idea of what is inappropriate for children.

Ah, nothing like the good 'ol internet to throw a stick in the spokes of this "community standards" argument. I just wish people woul get over this notion that they have some type of legitimate right to determine what peaceful activities people engage in on private property.

Think of it this way: Berkely would probably consider Free Republic's content harmful to minors. I don't think Jim Robinson wants to put a credit card barrier in front of posters because some Congressmen were busy making themselves look like they can actually solve problems without creating new ones on the way.

I think it should be up to parents to regulate their kids, including what they are allowed to see and do online.

About the only recourse you have if you receive smutty spam like that is to trace the source of the spam, then report it to the spammer's ISP. Simply telling the sender to stop doesn't work because they usually use a fake TO: address or use other methods to cloak the actual source. And, if you actually do track down the real sender, sending them a request to stop spamming you only results in your email address being placed on a "live" list and sold to other spammers, ensuring even more spam.

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