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Supreme Court deals Congress setback on Internet porn law

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WASHINGTON (BP)–The U.S. Supreme Court has dealt Congress another setback in its effort to protect children from Internet pornography.

The high court ruled June 29 in a 5-4 vote that a federal judge was correct in blocking enforcement of the Child Online Protection Act, a 1998 law that bans commercial Web sites from making sexually explicit material available to children under the age of 17. The justices sent the case back to the court for a full trial.

The Supreme Court did not strike down COPA but agreed with the lower court’s preliminary injunction preventing its enforcement. The justices endorsed the federal court’s opinion that the law would burden some constitutionally protected speech, as well as its conclusion that less restrictive means existed to protect minors.

The Supreme Court’s remanding of the case to a federal court in Philadelphia, Pa., means it probably will return to the justices. While a victory for supporters of the law appears unlikely at this time, a change in the court’s make-up or in one justice’s vote would be enough to uphold COPA.

The law’s defenders chastised the high court for its ruling.

“This opinion illustrates two things,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “First, the Supreme Court still doesn’t get it. Congress, the president and many parents in America do get it. It is society’s responsibility, and that includes the government, to protect children from exposure to this emotional and spiritual toxic waste called online pornography. The legal quibbles of the court illustrate that it still represents a society more preoccupied with adult, so-called rights than adult obligations to protect children.

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“Second,” Land added, “the decision underscores the fact that parents must do all they can to protect their children from this spiritual terrorist assault on their homes and their children’s hearts and minds by adding protections and shields, such as Bsafe Online, to stop this electronic slime from being poured into their homes.”

Pat Trueman of Family Research Council called the opinion “yet another victory at the high court for pornographers at the expense of America’s children.”

“With spam emails and pop-up ads littering the Internet, it is easy to see how a child could unwittingly end up on a pornographic Web site,” said Trueman, FRC’s senior legal advisor, in a written statement. “It is not too much to ask that Web users who want to access commercial pornographic content prove they are adults.”

Congress passed COPA in 1998 as a response to the court’s rejection of the Communications Decency Act. The justices ruled in 1997 that CDA, which was enacted in 1996, violated the First Amendment. CDA barred online computer distribution of obscene and indecent material to children less than 18 years of age. COPA narrowed its target to World Wide Web sites that make sexually explicit material available for commercial purposes and lowered the age limit for a minor to children under 17.

In the high court’s majority opinion on COPA, Associate Justice Anthony Kennedy said that filtering software is “an alternative that is less restrictive” and “likely more effective” than COPA. The federal government did not show alternatives such as filters were less effective than COPA, he wrote.

Another reason for remanding the case is the fact-finding by the federal judge in 1999 “does not reflect current technological reality,” Kennedy wrote. He also said Congress has approved other attempts to protect children online. He cited a 2004 law that bans misleading Internet domain names and is designed to block Web sites from disguising pornography, as well as another measure approved this year establishing a “Dot Kids” domain in which all content is suitable for children under 13.

The court’s opinion does not mean it is ruling Congress “is incapable of enacting any regulation of the Internet designed to prevent minors from gaining access to harmful materials,” Kennedy wrote. It also does not mean the federal court is prohibited from ruling the government has shown COPA is the least restrictive manner of protecting children online, he said.

Joining Kennedy in the majority opinion on Ashcroft v. ACLU were associate Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg. Thomas’ vote was something of a surprise, since he is normally regarded as one of the court’s two most conservative members. Associate Justice Antonin Scalia is the other.

Associate Justice Stephen Breyer, joined by Chief Justice William Rehnquist and Associate Sandra Day O’Connor, wrote a dissenting opinion, as did Scalia.

In his dissent, Breyer disagreed with the court’s opinion that Congress “could have accomplished its statutory objective –- protecting children from commercial pornography on the Internet –- in other, less restrictive ways.” He said, “There is no serious, practically available ‘less restrictive’ way similarly to further this compelling interest.”

The COPA decision marked the latest skirmish in an ongoing battle between Congress and the courts over protecting children from online pornography. Last year, the justices granted a limited victory to Congress’ efforts to protect children when they upheld the Children’s Internet Protection Act, which requires public and school libraries that receive government Internet discounts to install filters on their computers to block pornography.

This was the second time COPA has been before the high court. It sent the case back to the Third Circuit Court of Appeals once before when it decided the lower court’s sole basis for its ruling was inadequate. Upon its review, however, the appeals court reaffirmed its ruling, saying the law was “clearly a content-based restriction on speech.”

In addition to cases involving protection of children from online porn, the Supreme Court also invalidated in 2002 portions of the Child Pornography Prevention Act, a 1996 federal law that expanded a ban on child porn to include images that appear to be of children under 18 engaged in sexually explicit conduct.

Bsafe Online is a filtering software that has gained the endorsement of the Ethics & Religious Liberty Commission, LifeWay Christian Resources and other evangelical Christian organizations. Bsafe Online works with an existing Internet service provider to monitor content from the Web. Information on Bsafe is available through a link on the ERLC’s Web site, www.faithandfamily.com.

Organizations filing briefs with the Supreme Court in favor of the law were FRC, the American Center for Law and Justice, Focus on the Family, Morality in Media and Wallbuilders.

Among those filing briefs opposing the measure were associations of publishers and journalists, as well as People for the American Way.
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