US Supreme Court keeps Net porn law on ice

The 5-4 ruling upheld an injunction barring prosecutors from filing criminal cases under the Child Online Protection Act, or COPA, until a full trial takes place. COPA restricts the use of sexually explicit material deemed "harmful to minors" on commercial Web sites. Violation of the law can result in civil fines and prison terms.

In its decision, the high court said that a full trial in Philadelphia would permit the case to reflect the "current technological reality" about the state of porn-filtering applications--which means that questions about the ultimate fate of COPA may remain unresolved for two or three more years, while the law's supporters head back to court.

The Bush administration signaled that it would continue to defend the law.

"Congress has repeatedly attempted to address this serious need, and the court yet again opposed these common-sense measures to protect America's children," the Justice Department said in a statement. "The department will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web."

Congress enacted COPA in 1998 in response to pressure from antiporn groups, but it was instantly challenged in court by the American Civil Liberties Union and has never been invoked in prosecutions.

The lack of government controls on Internet pornography has permitted the industry to blossom on the Web. A report from Reuters Business Insight in February 2003 calculated that sex-related business represented two-thirds of all revenue generated by online content in 2001 and that it had ballooned to a US$2.5 billion industry since then.

In an unusual set of legal proceedings, COPA has been bouncing around between the lower courts and the Supreme Court. A federal judge in Philadelphia struck down the law in February 1999, and the 3rd Circuit Court of Appeals followed suit. But the Supreme Court said in May 2002 that it wanted more analysis from the appeals court, which looked at the law again and promptly said for the second time that it violated the First Amendment.

The majority opinion in Tuesday's decision, written by Justice Anthony Kennedy, suggested that a trial may show that filtering software was a more effective way of preventing children from seeing inappropriate material than relying on criminal laws that can't reach overseas. A "filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America," Kennedy wrote.

"Filtering software, of course, is not a perfect solution to the problem of children gaining access to harmful-to-minors materials," Kennedy wrote. "It may block some materials that are not harmful to minors and fail to catch some that are."

Still, he said the Justice Department, which is defending the law, has failed so far to prove that filters are that flawed as an alternative.

Justice Kennedy was joined in his opinion by justices Ruth Bader Ginsburg, John Paul Stevens, David H. Souter and Clarence Thomas.

Dissent: COPA burden is "modest"
A dissent written by Justice Stephen Breyer said COPA "imposes a burden on protected speech that is no more than modest" and should be upheld as constitutional.

COPA "does not censor the material it covers," Breyer wrote. "Rather, it requires providers of the 'harmful to minors' material to restrict minors' access to it by verifying age. They can do so by inserting screens that verify age using a credit card, adult personal identification number or other similar technology. In this way, the act requires creation of an Internet screen that minors, but not adults, will find difficult to bypass."

Breyer was joined in his opinion by Justice Sandra Day O'Connor and Chief Justice William H. Rehnquist. Justice Antonin Scalia wrote his own dissent.

COPA makes it a crime to publish "any communication for commercial purposes that includes sexual material that is harmful to minors, without restricting access to such material by minors."

Material that is "harmful to minors" is defined as lacking "scientific, literary, artistic or political value" and that is offensive to local "community standards." The maximum penalty is a US$50,000 fine, six months in prison and additional civil fees.

If COPA is eventually upheld as constitutional, many adult Webmasters could be imperiled unless they redesign their sites. "Teaser" images may disappear, since COPA says Webmasters who employ measures such as credit card verification or require an "adult access code" can't be prosecuted, as these mechanisms would typically keep out minors.

COPA represents Congress' second attempt to restrict sexually explicit material on the Internet. The Supreme Court in 1997 rejected the Communications Decency Act, which covered "indecent" or "patently offensive" material, as unconstitutional.

Plaintiffs in the COPA case include the American Booksellers Foundation for Free Expression, Salon.com, ObGyn.net, Philadelphia Gay News and the Internet Content Coalition. CNET Networks, publisher of News.com, was a member of the now-defunct Internet Content Coalition.

Supporters, opponents will keep fighting
Tuesday's decision provoked sharp reactions from people on both sides in the case.

The ACLU's Ann Beeson, who has spearheaded legal challenges against COPA for the past six years, called the ruling a clear win for free-speech rights on the Internet.

"The status quo is maintained, but that is a huge victory," said Beeson, associate legal director for the ACLU's national office. "Had the Supreme Court not upheld the appeals court decision, it would have been a crime today to display material on the Internet that is freely available on cable television and in R-rated movies."

Beeson said she now plans to ask the Department of Justice to agree to drop the case, given what she described as the court's "very strong indication" that the law violates the First Amendment.

"The government has wasted enough tax dollars trying to defend twice a law that the court has said twice is unconstitutional...The facts have not changed, and as Justice Kennedy pointed out, they have swung in our favour since the law was enacted. There are more options in terms of filtering software, and there are two or three laws on the books now that mandate the use of filters in schools and public libraries."

Backers of the law vowed to fight on.

Congressman Michael Oxley, R-Ohio, who co-authored the COPA bill entered in the House of Representatives in 1998, said in a statement that he planned to press the Department of Justice to "mount an aggressive case" on behalf of the law.

"I don't think that pornographers have any more right to shove their smut into the faces of children in cyberspace than they do at the corner newsstand," he said. "The pervasiveness of pornography on the Internet is going to be a barrier to its development."

Oxley was unavailable for an interview. But his press secretary, Tim Johnson, said the law is "wildly popular" among constituents in Oxley's district.

"Even Justice Kennedy admitted that filtering is not perfect," Johnson said. "That's something we hear over and over from parents. They say they can't trust filters, and they can't stand around in front of the computer while their children surf the Internet. That's why we focused on criminal penalties in the law. It's a powerful incentive to ensure pornographers don't market smut to children."

Evan Hansen contributed to this report.