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Published: 7/6/2004

When noble ideas collide

WHILE protecting children from Internet pornography is a worthy societal goal, a federal law to that end seemed unconstitutional from the start. Fortunately, the U.S. Supreme Court agreed, coming down on the side of free-speech rights in again blocking a governmental attempt to restrict online pornography.

What was particularly troubling about the 1998 Child Online Protection Act, known by the acronym COPA, was a measure Justice Anthony Kennedy called "content-based prohibitions." The law, which has never taken effect because of court challenges to its constitutionality, includes criminal penalties for posting online content "harmful to minors."

Writing for the majority, Justice Kennedy said the law's creation of fines and jail time for violators would "have the constant potential to be a repressive force in the lives and thoughts of free people. To guard against that threat the Constitution demands that content-based restrictions be presumed invalid."

The 5-4 ruling, while shocking to some considering recent court decisions, was not altogether unexpected. For the second time in five years the court has weighed in on the law and found it lacking.

While the court again refused to make a definitive ruling on the constitutionality of the congressional effort to keep minors away from pornographic Web sites, it gave the government another chance to make its case in the lower courts. The court said the constitutional burden of proof is on the government.

But the Supreme Court held little confidence that sending the case back to a federal court in Philadelphia would accomplish that goal. So instead of muzzling free speech, the court suggested a preferable option might be the numerous software advancements in Internet technology to better shield children.

"Filters are less restrictive," wrote Justice Kennedy. "They impose selective restrictions on speech at the receiving end, not universal restrictions at the source."

The 1998 law required Web operators of sexually oriented sites to screen out children through the use of credit cards, adult access codes, or other means of identification. Violators would face fines up to $50,000 and up to six months in jail for each offense.

Court dissenters agreed that implementing the law could infringe on the protected rights of adults to see or purchase material deemed harmful to children but they argued it was a small price to pay to keep Internet pornography away from minors.

COPA, as properly interpreted, said Justice Stephen Breyer, "risks imposition of minor burdens on some protected material, burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography."

Still, the better, more legally sound alternative would effectively safeguard both America's Web-surfing children and protected speech under the First Amendment.



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