Supreme Court says COPA is likely unconstitutional


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

The U.S. Supreme Court ruled June 29 that a law designed to protect minors from Internet pornography was probably overbroad and unconstitutional, but sent the case back to a lower court to rule on whether new technological advances 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 day and jail time for anyone who exposed minors to harmful material online, threatened the First Amendment right to free speech if enforced.

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

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

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

Others worried it could restrict minors’ access to Web sites in which some content was deemed inappropriate, but other information was educational.In the ruling, the Court said a U.S. district court was right to block the law from being implemented. 

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

Justice Department spokesman Mark Corallo spoke out against the ruling and said Department of Justice officials will continue to fight Internet predators.

"Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped," Corallo said. "Congress has repeatedly attempted to address this serious need and the court yet again opposed these common-sense measures to protect America's children."

Though the Supreme Court ruled that COPA was probably unconstitutional, similar legislation has been introduced in the U.S. House of Representatives 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 parents to sue anyone involved in the distribution of pornographic material that is obscene or otherwise “harmful to minors” to which minors could be exposed.

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

“The Supreme Court missed an important opportunity to act now to protect our nation’s young people,” said Jay Sekulow, chief counsel for the ACLJ. “We are hopeful that the government will be able to establish that Congress acted properly and in a constitutional manner in enacting this law."

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

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Fall 2004, reports