Brian Krebs and David McGuire
Washtech.com Staff Writers
The U.S. Supreme Court today partially upheld a controversial law that makes it illegal for Web site operators to expose children to pornography and other material deemed "harmful to minors."
At the heart of today's complex 8-1 ruling was the constitutionality of the Child Online Protection Act (COPA), a law that would hold Internet content providers criminally responsible if they "allow" children to view adult content online.
The law remains in legal limbo until the lower court reconsiders some of the broader free-speech issues raised by the plaintiffs in the original challenge to the law.
Today's decision supports COPA's reliance on "community standards" to determine what material is harmful to minors - something that the law's opponents say could make the most conservative American community the arbiter of what is considered inappropriate for children to see on the Internet.
The American Civil Liberties Union challenged the constitutionality of the 1998 law. In 1999, a U.S. District Court judge issued a preliminary injunction preventing much of the law from taking effect. In 2000, the 3rd U.S. Circuit Court of Appeals upheld that injunction, ruling unanimously that the community standards test was unconstitutional.
The ACLU had argued that subjecting material posted on the inherently global Internet to a "community standards" test would effectively force all Web sites to conform to the moral code of the nation's most restrictive community.
That view was embraced by Justice John Paul Stevens, the lone dissenter in today's decision.
"In the context of the Internet, 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."
The law would have provided a "safe harbor" for adult sites that hid their content behind age-verification screens. The ACLU charged that such restrictions could lead to self-censorship by content providers leery of losing site traffic.
But the Supreme Court acknowledged that such issues were not addressed by the appeals court, which tailored its decision to the community standards provision.
"The Court expresses no view as to whether COPA suffers from substantial overbreadth for reasons other than its use of community standards, whether the statute is unconstitutionally vague, or whether the statute survives strict scrutiny," said Justice Clarence Thomas, writing for the majority.
Online pornographers have been bellwethers for the Internet industry since the World Wide Web emerged in the mid-1990s. Pornography was the first e-commerce sector to post real profits from online transactions and the first to incur the scrutiny of lawmakers eager to set rules for the untamed Internet.
Over the past six years, lawmakers have strived in many different ways to regulate porn on the Internet, with a recent U.S. Supreme Court ruling on the validity of the controversial Child Online Protection Act (COPA) only the latest development.
The result is a bewildering assortment of laws and legal salvos that, at least in theory, protect children from material that some communities consider unsuitable. COPA is only one of a group of laws or bills abbreviated as CIPA, CPPA, CDA - and two different bills called COPPA.
And while the courts are busy upholding, overturning or refusing to hear a cavalcade of these "C-laws," the public has a hard enough time keeping abreast of what law accomplishes what goal.
Here's what a few of them mean:
CDA - Communications Decency Act:
Originally signed into law as part of the Telecommunications Act of 1996, the law would have required, among other things, that material considered "indecent" - such as pornography - be outlawed in public forums, most notably the Internet. The U.S. Supreme Court in 1997 overturned parts of the law, including the prohibition on public displays of pornography and other material considered "indecent."
Up to two years in jail, plus up to $250,000 fine for engaging in speech that
is "indecent" or "patently offensive" in a place where
minors can view or hear it.
Sponsor: Former Sen. James Exon (D-Neb.)
Signed into law: President Clinton, 1996, as part of the Telecommunications Act of 1996.
Status: Indecency prohibitions overturned, Supreme Court, 1997.
COPA - Child Online Protection Act:
The law penalizes Web site operators who allow children to view pornography, even if the pornographic materials are legal and fall under materials protected by the First Amendment. The law was crafted to apply only to the World Wide Web, not other facets of the Internet. It was designed to pass constitutional muster where CDA failed, but was frozen by a U.S. District Court judge following a legal challenge.
The Supreme Court has upheld a portion of the law dealing with so-called "community standards," but has left a lower court to hash out some of the thornier constitutional issues in the legislation.
Judges Say Libraries Needn't Block Porn
Robert O'Harrow Jr.
Washington Post Staff Writer
Saturday, June 1, 2002; Page A01
Government efforts to restrict access to online pornography were set back again yesterday when a panel of federal judges struck down a law requiring public libraries to install Internet filters to block access to objectionable sites.
In a unanimous decision, the three judges of a special panel in Philadelphia said the Children's Internet Protection Act is "invalid under the First Amendment" because it requires libraries to use technology that inadvertently blocks access to legitimate sites on the World Wide Web while allowing access to some pornographic sites.
The law known as CIPA, signed by President Bill Clinton two years ago, required that public libraries and schools use the software filters starting July 1 or risk losing millions of dollars from the federal government for computers and Internet access.
The panel of judges cited several "erroneously blocked Web sites," including those relating to churches and religious orders. A Knights of Columbus Web site was blocked by one filter for being "Adult/Sexually Explicit." A lesbian and gay Jewish community center site was categorized by another filter as "Adults Only, Pornography." A California political candidate's site and a Wisconsin Right to Life Inc. site were blocked for "Nudity."
The imprecision showed that "it is currently impossible, given the Internet's size, rate of growth, rate of change, and architecture, and given the state of the art of automated classification systems, to develop a filter that neither underblocks nor overblocks a substantial amount of speech," the judges ruled.
The decision marked the third time in recent years that such a law was overturned for being too broad or in violation of free-speech protections.
The American Library Association and American Civil Liberties Union led the most recent challenge on behalf of librarians, patrons and online publishers.
"The court bans the government from turning librarians into thought police," said Ann Beeson, the litigation director for the ACLU's technology and liberty program. Internet filters, she said, "are inherently flawed and would prevent library patrons all over the country from accessing valuable sites on the Web."
Justice Department officials are considering whether to appeal the decision to the Supreme Court, a spokeswoman said.
Yesterday's decision applies only to public libraries. It is unknown what effect it will have on provisions of the law that apply to schools.
The Montgomery County school system intend to proceed with its plan to begin filtering this summer, spokesman Brian J. Porter said. "If the authority continues, there is enough support," he said. "The prevailing mood at the moment is that the Internet is too wild and woolly for unsupervised use by our students."
In arguing the case, no one disputed the proliferation of adult sites on the Internet in recent years. The judges estimated there "are more than 100,000 pornographic Web sites that can be accessed for free and without providing any registration information, and tens of thousands of Web sites contain child pornography."
They said the Internet has spurred "the widespread dissemination of hardcore pornography within the easy reach not only of adults who have every right to access it (so long as it is not legally obscene or child pornography), but also of children and adolescents to whom it may be quite harmful."
But the judges agreed with the plaintiffs, who argued that the filters are clumsy, inaccurate and violate free-speech rights by cutting off access to legitimate sites, such as those offering information about sexuality, sexually transmitted disease and breast cancer.
While some libraries permitted patrons to request that the filters be turned off, the judges said such policies put the patrons in the awkward position of seeking permission to access sensitive material.
Officials of the American Library Association, the lead plaintiff, said the decision affirms the notion that parents must protect their children by teaching them the right ways to use the Internet.
"This technology is not protecting their children," said Emily Sheketoff, executive director of the association's District office.
Libraries will still be allowed to use filters for young children if parents request them, as many already do, but that will remain a local decision, a lawyer involved in the case said. That is what officials plan to do in Loudoun County, where parents are given the choice.
"It's the parents' responsibility to determine," said Douglas Henderson, the county's director of library services.
© 2002 The Washington Post Company