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Supreme Court declines to strike down Internet porn law

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    NMU         U.S. SUPREME COURT         Prior Restraints         May 14, 2002    

Supreme Court declines to strike down Internet porn law

  • The justices agreed in a mixed decision to remand the case challenging the Child Online Protection Act back to the appellate court, ordering it to review further the free-speech implications of the law.

The U.S. Supreme Court kept alive the latest congressional effort to shield children from what it considers harmful Internet content, determining that it could not strike the law down simply because it relies on “community standards.”

In a mixed decision released May 13, the Court suggested that the Child Online Protection Act, or COPA, might fail under other free-speech concerns not addressed at the district or appellate court levels. The Justices remanded the case, Ashcroft v. ACLU, back to the U.S. Circuit Court of Appeals in Philadelphia (3rd Cir.) for further review.

“The scope of our decision today is quite limited,” Justice Clarence Thomas wrote in the leading opinion of the fractured decision. “We hold only that COPA’s reliance on community standards to identify ‘material that is harmful to minors’ does not by itself render the statute substantially overbroad.”

Congress passed the law in 1998. The law allows prison sentences and fines up to $100,000 as punishment for placing material “harmful to minors” on a Web site available to Internet users under the age of 17. The law replaced portions of the Communications Decency Act, which the Supreme Court unanimously struck down as unconstitutional in 1997.

The law uses “contemporary community standards,” a phrase the Supreme Court used in crafting a test for obscenity cases, to determine what would be considered “harmful to minors.”

The American Civil Liberties Union, leading a coalition of free-speech groups and others, quickly challenged the law, which has never taken effect. The Supreme Court decision continues a U.S. district court injunction from February 1999 that forbade the government from enforcing the law.

The ACLU contends the law threatens to convert the Internet into a medium fit only for children based on the sensibilities of the nation’s most sensitive communities.

But the Bush administration defended the law, saying it appropriately directed operators of Web sites to keep “harmful to minors” materials from children.

Thomas’ decision hardly secured a true majority in this case, which yielded four different opinions. Thomas, joined by Chief Justices Warren Rehnquist and Justice Antonin Scalia, determined that if an Internet publisher wished to avoid the standards of a particular community, then it would merely have to take steps to avoid releasing the material to that community.

“If a publisher chooses to send its material into a particular community, this Court’s jurisprudence teaches that it is the publisher’s responsibility to abide by that community’s standards,” Thomas wrote. “The publisher’s burden does not change simply because it decides to distribute its material to every community in the Nation.”

Holding COPA unconstitutional, he wrote, would likely cause federal obscenity statutes to fall in the future.

Both Justices Sandra Day O’Connor and Stephen Breyer, in separate opinions, said a national community standard should apply.

In yet another opinion, Justice Anthony Kennedy, joined by Justices Ruth Bader Ginsberg and David Souter, said that while it is likely COPA is unconstitutional, the Court should not conclude as such until a lower court had completed a “comprehensive analysis.”

All eight justices said the case should go back to the appellate level for further review.

Justice John Paul Stevens, however, filed a dissenting opinion in which he agreed with the 3rd Circuit, which struck down COPA in 2000.

“Community standards become a sword, rather than a shield,” Stevens wrote. “If a prurient appeal is offensive in a Puritan village, it may be a crime to post it on the World Wide Web.”

(Ashcroft v. ACLU) PT

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