Proving correct the U.S. Supreme Court's intuition when in 2004 it upheld a preliminary injunction against the Child Online Protection Act, a U.S. federal court judge on Thursday ruled against the 1998 law designed to block children from viewing pornography on the Web, citing it violates free speech rights.
Judge Lowell Reed Jr. of the U.S. District Court in Philadelphia said parents can protect their children by employing software filters and other means that are less restrictive on the rights of others.
"I may not turn a blind eye to the law…to protect this nation's youth by upholding a flawed statute, especially when a more effective and less restrictive alternative is readily available," the judge wrote in his ruling.
"It certainly looks like a slam-dunk for the challengers and for the First Amendment," opined First Amendment attorney Reed Lee. "The district judge listened carefully at trial, made detailed and important findings of fact, and analyzed and applied the existing law in a straightforward way.
"The result is a happy one," Lee continued. "For many of us, it was predictable, because we have always believed COPA was seriously flawed. The opinion illustrates some of the things that happen when Congress tries to burden speech, which is constitutionally protected as to adults in order to prevent children from getting to it."
COPA never was enforced because it was challenged in court immediately after being signed into law by former President Bill Clinton.
Government lawyers argued during the four-week court challenge that Internet filters are ineffective tools, since most parents do not actively use them. Technology experts countered that parents now have more serious concerns than pornographic websites, since the threat of online predators on social-networking sites has become widespread.
"Conceptually, age verification is a very good thing, but no one has come up with a good way to do it yet—and that's where everyone's focus should be: trying to come with a good, viable method for that type of system," said First Amendment attorney Robert S. Apgood. "Unfortunately, age verification seems to get all of its focus on the adult industry, and that only accounts for 1 percent of the Internet. Cooperation of government agencies will give us a vehicle to accomplish these goals together, but unfortunately, that just is not happening right now."
Not everyone agreed. So-called "pro-decency" groups like Morality in Media immediately responded in the negative.
"While this may come as a surprise to some federal court judges, many parents are overburdened and tired," Morality in Media President Robert Peters said of the court's assertion that parents—not entertainment providers—should be responsible for what their children view online. "Many are naive. Many don't want to be overly strict, like their parents were. Many are 'technologically challenged,' like me. Many don't speak English. Many have physical or mental health problems. Some neglect and abuse their own children. But, even assuming that every parent with one or more computers in the home used filters at all times on each computer, and even assuming that filters blocked all pornography and could not be circumvented by tech-savvy children, there would still be a huge problem—namely, as children get older they increasingly have access to the Internet outside the home.
"Our nation's Founding Fathers—and once upon a time, even the Supreme Court itself—viewed the First Amendment within a framework of ordered liberty, not as a license to sell smut without any legal obligation to adopt sensible measures to restrict children's access," Peters continued. "This is utter nonsense."
Both supporters and detractors of the law predicted the ruling will be appealed or that Congress will pass new legislation.
"It was a very well-reasoned opinion, as [COPA] violates the Bill of Rights, and I fully expect it will get appealed back up to the 3rd [U.S. Circuit Court of Appeals] and then up to the Supreme Court," Apgood said. "[But, I also] fully expect the Supreme Court will uphold Reed's decision."
According to Lee, "It is unlikely the case is over. The government will almost certainly appeal. The 3rd Circuit, which will get the case next, has long been critical of COPA. The Supreme Court has already considered the case twice, both times affirming the preliminary injunction preventing enforcement of COPA. Now, the permanent injunction will go up on appeal, and the chances are much better than [the very low] average that the Supreme Court will ultimately decide this case. But the judge today has entered a solid ruling, well grounded in the law as it stands today. Barring a serious change in that law and barring additional unfortunate changes on the high court, the injunction entered today should ultimately stand."
