The adult Internet sighed in relief when the U.S. Supreme Court on June 29 sent the Child Online Protection Act back to trial in a Philadelphia federal court. But there were warnings that a message has been sent to the industry despite the Court upholding a block against the law on First Amendment grounds.
First Amendment attorney Lawrence G. Walters told AVNOnline.com that, while he considered the 5-4 ruling an "obvious, stunning victory for free speech," he wasn't quite ready to rejoice because he believes it's important for adult Webmasters to comply with the law until it is killed entirely.
"It's the right thing to do," Walters said. "The government likes to mix the issues of children and adult material whenever they can, and it's harder to defend an adult Webmaster providing materials that have free enough access for kids to consume. We've always recommended that our clients comply."
New Destiny Media Group chief Spike Goldberg thinks along similar lines. "Free speech is free speech; you're not going to mess with a tenet of our democracy," he told AVNOnline.com. "But I think people should be aware to do everything they can to keep pornography away from children. And we still have a long way to go toward achieving some sort of formal standard. Rest assured that if we don't do it, somebody's going to do it for us."
Writing for the majority, Justice Anthony M. Kennedy said content-based prohibitions bear a "constant potential" for repression "in the lives and thoughts of a free people… To guard against that threat, the Constitution demands that content-based restrictions on free speech be presumed invalid… This is true even when Congress twice has attempted to find a constitutional means to restrict and punish the speech in question."
But Kennedy also said it didn't mean Congress couldn't pass any law or regulation aimed at keeping minors from seeing adult or other "harmful" materials. He noted the 3rd U.S. Circuit Court of Appeals, in addressing COPA and sending it to the high court again, never tended the question of whether more evidence could be brought in regarding alternatives to COPA.
"This opinion," he wrote for the high court majority, "does not foreclose the [federal trial court] from concluding, upon proper showing by the Government that meets the Government's constitutional burden as defined in this opinion, that COPA is the least restrictive alternative available to accomplish Congress's goal."
Not so, wrote Justice Stephen Breyer in a dissent many have deemed surprising, particularly since he is often seen as a close ally of Justice Ruth Bader Ginsburg, who voted with the majority. Breyer in fact argued that COPA is Constitutional because there is no serious, available, or almost-available "less restrictive" way to do what Congress intended COPA to do.
"[COPA], as properly interpreted, risks imposition of minor burdens on some protected materials – burdens that adults wishing to view the material may overcome at modest cost," Breyer wrote. "At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography.
Walters also said the new ruling still leaves room for the government to use existing obscenity laws as a fuel for the much-anticipated federal crackdown on adult material. "Other than that," he said, "[the ruling] was a tremendous decision for First Amendment assets."
Breyer noted that filtering software does not solve the problem of child protection, "allowing some pornographic material to pass through without hindrance," and that no one has said authoritatively that technology to make filters that distinguish and discriminate between images is now or about to be available widely.
