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icon3.gif Encouraging news from the US Supreme Court...mostly  [message #21469] Fri, 09 July 2004 03:55 Go to previous message
david in hong kong is currently offline  david in hong kong

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U.S. high court rejects Internet porn law

Tue Jun 29, 8:17 PM ET
Ann Rostow, PlanetOut Network



The U.S. Supreme Court has once again rejected an effort by the U.S. Congress to restrict access to the Internet, this time upholding an injunction that blocks enforcement of the Child Online Protection Act (COPA).


The justices on Tuesday sent a challenge to the law back to U.S. District Court, where the government will have to prove that COPA is the least restrictive way of protecting kids from cyber porn.


Tuesday's ruling adds another segment to the long-running debate over how to limit Internet porn without running roughshod over the First Amendment. In 1996, Congress passed the Communications Decency Act, which was struck by the high court as unconstitutional in Reno v. ACLU. Two years later, Congress relied on the Supreme Court's opinion in that case to craft COPA, a statute that purports to require online porn companies to make sure that their users are willing adults, or else face criminal penalties.


Once again, however, the lawmakers failed to pass constitutional muster.


From the start, it was not clear what types of Web producers would fall victim to COPA's fines and jail time. Material deemed "harmful to minors" could theoretically encompass sex education, art and support sites for gay youth. Challenged by the ACLU on behalf of several parties, including PlanetOut Inc. (owner of Gay.com and PlanetOut.com), COPA was put on hold by a federal court and struck as unconstitutional by the U.S. Court of Appeals for the 3rd Circuit in 2000. The appeals court ruled that the Internet was too extensive to be governed by "community standards" of obscenity.


The 3rd Circuit's ruling was appealed to the U.S. Supreme Court in 2001, where the justices reversed, ruling that in some circumstances, "community standards" could indeed be applied in cyberspace. However, the high court's main objection was that the 3rd Circuit had not done its job, which was to evaluate the rationale for the lower court's injunction.


Back down went the case, and, in due time, the 3rd Circuit again ruled that the lower court was correct. The lower court had determined that COPA did not appear to be the least intrusive method available to deal with the dilemma of easy access to cyber porn. Why not encourage the use of filters at home, for example? Under First Amendment jurisprudence, the government is obliged to prove that limits on protected free speech are in essence a last resort, and the only means to satisfy a compelling state interest.


This ruling, in turn, was appealed again to the high court, which on Tuesday sided with the federal appellate panel. Now the stage is set for a retrial in district court, where the government will try and argue that COPA is the only solution that will save the children.


Tuesday's 5-4 decision was a complex one. Justice Kennedy wrote the majority opinion, joined by Justices Souter, Stevens, Ginsburg and Thomas. Justices Stevens and Ginsburg wrote a concurring opinion, noting that the "community standards" argument should have settled the case to begin with.


Justice Breyer wrote a dissent, (joined by Chief Justice Rehnquist and Justice O'Connor), insisting that COPA's restrictions on speech were modest burdens and that filtering software was not comparable. Finally, Justice Scalia wrote his own dissent, arguing that porn doesn't deserve any First Amendment protection at all.


"Always forgive your enemies...nothing annoys them quite so much." Oscar Wilde
 
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