There's a good chance the law violates free speech rights, the court rules, 5-4. It goes back to a lower court for trial.
By DAVE GUSSOW
Published June 30, 2004
A law intended to protect children from online pornography will get another day in court, but a Supreme Court ruling Tuesday casts doubt that it will survive the legal challenge.
A 5-4 majority ordered the case back to a lower court for trial, while suggesting a ruling that blocked enforcement of the 1998 Child Online Protection Act was correct because it probably violated the First Amendment.
"There is a potential for extraordinary harm and a serious chill upon protected speech" if the law took effect, Justice Anthony M. Kennedy wrote for the majority.
Kennedy's opinion strongly suggested that the government could have accomplished its purposes by encouraging the use of antipornography filtering software by parents. Kennedy noted that COPA's criminal penalties would not reach Web sites that originate in foreign countries, while filtering technology would.
The majority explicitly stopped short of deciding whether the law is constitutional. That is a question that can be answered only after a trial, the majority said, even as it acknowledged that the rapid advances in Internet and computer technology make it difficult to foresee what all the issues at a trial will be.
Kennedy was joined by justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Clarence Thomas.
Justice Stephen G. Breyer wrote a dissent in which he held that the law is indeed constitutional and that if it were ever enforced, it would be far less restrictive than its detractors have predicted.
Also dissenting were Chief Justice William H. Rehnquist and justices Sandra Day O'Connor and Antonin Scalia.
The 6-year-old law makes it illegal for commercial Web sites to make available to children 16 and under material that is not necessarily obscene but could be considered "harmful to minors" under a complex, three-part formula.
The law, signed by then-President Bill Clinton and backed by the Bush administration, would require adults to use access codes or other ways of registering before they could see objectionable material online, and it would punish violators with fines up to $50,000 or jail time.
The American Civil Liberties Union and other groups filed the suit challenging the law on behalf of online bookstores, artists and others. The ACLU argued that material legal for adults could result in prison and fines for its clients if children happened to see it.
It is the second time the court has rejected a congressional attempt to protect children from online porn. Supporters had argued that the 1998 law overcame free-speech objections that led to a 1996 law being ruled unconstitutional.
"I think there's a problem with any law that deals with pornography in the U.S.," said Parry Aftab, executive director of WiredSafety.org and an expert on online safety for children. "The First Amendment and community test (standard) just doesn't work on the Internet."
In fact, Aftab says, only about 60 percent of the estimated 1-million-plus porn Web sites are housed in the United States, which would make an already difficult enforcement problem tougher.
"The bad guys are using technology to get to our kids," Aftab said.
Fraud and consumer protection laws already on the books can be used against the pornographers' techniques rather than spending time and money on new laws, she says.
Some of those methods are familiar to many online users, such as popup advertisements, hijacked Web home pages from spyware and adware, spam messages and "phishing" scams that lure people because they look like legitimate e-mail and Web sites from well-known companies.
Some tricks make children particularly vulnerable. In "typo-squatting," for example, a child might mistype a Web address for a children's site but instead be taken to a pornographic site.
And if many adults fall victim to such schemes, what defenses do kids have? Not a lot, because the United States is behind other countries in teaching families about the dangers.
"They're not getting the education, but they're getting online," said Michael Berson, an associate professor of social science education at the University of South Florida and an expert in online safety for children. "We need to teach (children) how to be good world citizens in a digital environment."
The case also reflects the difficulty Congress will have in writing laws regulating activities on the Internet. In December, Congress passed the CAN-SPAM Act aimed at reducing the flood of junk e-mail. But by almost any measure that attempt has been largely ignored by spammers.
That puts the burden on parents at home and teachers in a classroom, but neither is doing much on the issue, experts say. Both Aftab and Berson can cite other countries such as New Zealand that are far ahead of the United States. In Pinellas County schools, for example, tech coordinators and teachers get some instruction in safety issues, but there's no formal class plan to talk to students.
"It's hit and miss," acknowledged Judy Ambler, supervisor of instructional technology for Pinellas schools. And, in many cases, it's the kids who know more than the adults about the online world.
"People just don't have a full understanding of the Internet and what's out there," Ambler said. "You don't want to scare them, but you need some common sense strategies in dealing with it."
- Information from Times wires was used in this report. Dave Gussow can be reached at gussow@sptimes.com or 727 771-4328.
