High Court Upholds Blocking of Web Porn Law

The Supreme Court ruled this morning that a law meant to punish Internet pornographers aiming smut at children – known as the Child Online Protection Act – is likely an unconstitutional muzzle on free speech.

The high court divided 5-4 over a 1998 law signed by President Clinton and subsequently supported by the Bush administration. The majority decided that the previous lower court was correct in granting a preliminary injunction against the law on the basis that COPA likely violates First Amendment free speech protections, and voted to send the case back to a lower court for a trial that could give the government a chance to prove the law does not go too far.

This ruling is seen as a major blow to the government's attempts to stifle sexual speech. It marks the third time the high court has considered the case, and it likely will not be the last. It also marks some dissent among members of the Supreme Court. While justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and, most surprisingly, Clarence Thomas, concurred with Justice Anthony M. Kennedy, 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.

Yet the majority, led by Kennedy, who has authored several pro-free speech and pro-liberty opinions in the past two years, said there might have been significant technological advances in the five years since the federal Ashcroft v. American Civil Liberties Union ruling. Holding a new trial will allow discussion of what technology, if any, might allow adults to access material that is legal for them while keeping it out of the hands of minors.

"We're very pleased with the decision," ACLU lawyer Ann Beeson told the Associated Press. "The status quo is still with us and the court made it safe for artists, sex educators and Web publishers to communicate with adults without risking jail time… There is a potential for extraordinary harm and a serious chill upon protected speech" if the law took effect."

The ACLU and other opponents of the anti-pornography law claim the law restricts far too much material that adults can legally view and buy as the law, which never actually took effect, would have sanctioned fines up to $50,000 for the crime of placing material that is "harmful to minors" within the easy reach of children on the Net. The law also would also force adults to use access codes and or other ways of registering before they could reach objectionable material online.

Kennedy was quoted as saying that filtering software "is not a perfect solution to the problem of children gaining access to harmful-to-minors materials." So far the government has failed to prove that other technologies would work better, he said.

Congress has continually attempted to find a way to protect Web-surfing kids from smut without trampling the First Amendment.