Supreme Court says COPA is likely unconstitutional

WASHINGTON, D.C. — Restrictions designed to protect minorsfrom Internet pornography must be designed as narrowly as possible to avoidviolating the First Amendment, the U.S. Supreme Court reaffirmed this summer. 

The U.S. Supreme Court ruled June 29 that a law designed to protectminors from Internet pornography was probably overbroad and unconstitutional,but sent the case back to a lower court to rule on whether new technologicaladvances would make enforcement of the law feasible. In a 5-4 decision,the court ruled that a 1998 statute, which carried up to a $50,000 fine per dayand jail time for anyone who exposed minors to harmful material online,threatened the First Amendment right to free speech ifenforced.

“Content-based prohibitions, enforced by severe criminalpenalties, have the constant potential to be a repressive force in the lives andthoughts of a free people,” wrote Justice Anthony M. Kennedy in themajority opinion of the court. 

The Child Online Protection Act wassigned into law by President Clinton, and President Bush has supported the law. 

The American Civil Liberties Union and several electronic communicationsgroups, however, opposed the law, saying it could punish Web site publishers forposting sexual content that is legal for adults. Student media advocates wereconcerned that the law could punish members of student media organizations forpublishing material deemed harmful to minors online, such as sex columns. 

Othersworried it could restrict minors’ access to Web sites in which somecontent was deemed inappropriate, but other information waseducational.In the ruling, the Court said a U.S. district court wasright to block the law from being implemented. 

“Today’sruling from the court demonstrates that there are many less restrictive ways toprotect children without sacrificing communication intended for adults,”according to a statement on the ACLU Web site. “By upholding the orderstopping Attorney General Ashcroft from enforcing this questionable federal law,the court has made it safe for artists, sex educators and Web publishers tocommunicate with adults about sexuality without risking jail time.” 

Justice Department spokesman Mark Corallo spoke out against the rulingand said Department of Justice officials will continue to fight Internetpredators.

“Our society has reached a broad consensus that childobscenity is harmful to our youngest generation and must be stopped,” Corallosaid. “Congress has repeatedly attempted to address this serious need and thecourt yet again opposed these common-sense measures to protect America’schildren.”

Though the Supreme Court ruled that COPA was probablyunconstitutional, similar legislation has been introduced in the U.S. House ofRepresentatives that would apply to both virtual and tangible material.

Rep. Duncan Hunter, R-Calif., is sponsoring the“Parents’ Empowerment Act of 2004,” which would allow parentsto sue anyone involved in the distribution of pornographic material that isobscene or otherwise “harmful to minors” to which minors could beexposed.

Both Hunter and Rep. Todd Akin, R-Miss., a co-sponsor of thebill, were represented in a friend-of-the-court brief filed by the AmericanCenter for Law and Justice in favor of COPA.

“The Supreme Courtmissed an important opportunity to act now to protect our nation’s youngpeople,” said Jay Sekulow, chief counsel for the ACLJ. “We arehopeful that the government will be able to establish that Congress actedproperly and in a constitutional manner in enacting thislaw.”

CASE: Ashcroft v. American Civil LibertiesUnion, No. 03-218 (U.S. June 29, 2004).

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