WASHINGTON (BP)–The U.S. Supreme Court should uphold the more limited attempt by Congress to solve the “overwhelming” problem of child access to Internet pornography, a lawyer for the Bush administration told the justices March 2.
The high court heard oral arguments in its review of the Child Online Protection Act, a follow-up to a 1996 federal law the justices struck down. The case came to the justices from the Third Circuit Court of Appeals, which invalidated COPA for violating the First Amendment. The Justice Department appealed that ruling to the high court, setting up the arguments in Ashcroft v. ACLU.
The arguments about COPA marked the latest skirmish in an ongoing battle between Congress and the courts over protecting children from online pornography. The justices ruled in 1997 that COPA’s forerunner, the Communications Decency Act, violated the First Amendment. CDA barred online computer distribution of obscene and indecent material to children less than 18 years of age.
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.
Congress passed COPA in 1998 as a response to the court’s rejection of the Communications Decency Act. The law 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.
COPA is “constitutional, according to this court’s guidance,” Solicitor General Theodore Olson told the Supreme Court during arguments. All three branches of the federal government have described the problem of protecting children from Internet pornography as “compelling,” and the resultant need is “overwhelming and growing,” Olson said.
The online availability of sexually explicit material is a “serious national problem” that is “causing irreparable injury to our most important resource, our children,” Olson told the justices. Eleven million children a week visit online pornography sites, he said.
ACLU lawyer Anne Beeson, however, told the justices COPA violates the First Amendment by inhibiting communication between adults when there are less restrictive means available. “This statute raises First Amendment [problems] in every single application,” she said. It is clear COPA “would deter adults’ access to protected speech,” Beeson said.
Associate Justice Stephen Breyer expressed particular consternation about the dilemma, questioning Beeson as to what she would recommend Congress do.
Laws already exist that address Congress’ concerns, she told the justices, including CIPA, which mandates filters on library computers; a law that penalizes websites that utilize misleading domain names, luring children to them as a result; and a measure that requires Internet service providers to give information on parental controls.
When Beeson cited CIPA, Associate Justice Antonin Scalia wryly commented, “Your organization didn’t support that,” eliciting laughs from audience members who realized the ACLU helped lead the legal challenge to the law.
While the ACLU and other opponents of COPA contend it is the parents’ responsibility to protect their children, Olson told the court Congress intended “to put the burden” on those who regularly profit from the sexually explicit material.
After the arguments, a defender of the law expressed hope the high court would uphold it. Jay Sekulow, chief counsel of the American Center for Law and Justice, told reporters he believed he had observed “a court that recognizes this law protects both the First Amendment and children.”
The ACLJ submitted a friend-of-the-court brief on behalf of members of Congress who supported COPA. Other organizations signing on to briefs in favor of the law were Focus on the Family, Family Research Council, 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.
The Third Circuit, which is based in Philadelphia, actually struck down COPA twice. Its most recent decision against the law came last March, after the Supreme Court had returned the case to the appeals court when the justices decided the lower court’s sole basis for its ruling was inadequate.
Upon its review, however, the appeals court reaffirmed its ruling. A three-judge panel unanimously agreed that a federal court acted appropriately in granting a preliminary injunction against COPA. The law “is not narrowly tailored” and “does not use the least restrictive means” to accomplish its goals, the panel said. “COPA is clearly a content-based restriction on speech.”
The high court had ruled the Third Circuit erred in its original decision by relying solely on “contemporary community standards” for deciding what material is harmful to underage children. The Third Circuit had ruled this provision made the law too broad, because material on the Internet “deemed harmful by the most puritan of communities” would require the restriction of “vast amounts of material” for all users and likely violate the First Amendment.
In sending the case back to the appeal court, the Supreme Court stated that the community standards measure does not “by itself” make the law overbroad in regard to the First Amendment. Associate Justice Clarence Thomas, delivering the court’s judgment, said the justices were not by their decision expressing “any view as to whether COPA suffers from substantial overbreadth for other reasons” or “whether the statute is unconstitutionally vague.”
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.
A decision in Ashcroft v. ACLU is expected before the court adjourns this summer.
–30–
