Student Press Law Center

United States will appeal Child Online Protection Act ruling

Pennsylvania court declared 1998 act unconstitutional in March

© 2007 Student Press Law Center

June 14, 2007

PENNSYLVANIA — In another step of a legal marathon that has spanned three attorney generals and traveled to the U.S. Supreme Court and back, a federal court in Pennsylvania ruled March 22 that a law intended to shield children from Internet pornography violates the First and Fifth Amendments. The U.S. government has filed an appeal.

This latest decision said there is no practical method to prevent minors from accessing potentially harmful material without also denying adults of protected speech to which they are constitutionally entitled.

"After nearly a decade of legal proceedings, the First Amendment has emerged victorious from the government’s illegal attempt at online censorship,” said Anthony Romero, the ACLU's executive director, in a press release. “The courts have ruled, once again, that speech on the Internet is protected.”

In June 2004, the case reached the U.S. Supreme Court, where a 5-4 decision said the law was probably unconstitutional but sent it back to the lower federal court in Pennsylvania. During discovery, the ACLU contested a government subpoena of Google searches, delaying the trial's start until October 2006.

The law, the Child Online Protection Act of 1998, banned any speech on the Internet deemed "harmful to minors" unless the Web site made a clear effort to prevent minors from accessing it.

But without any effective technology to determine the age of Web viewers, the ACLU and other free-speech organizations contended the law would censor content that was legal for adults. The law also could have prevented online student media from publishing any content relating to sex or sexuality, advocates said.

While recognizing Congress's interest in protecting children from online pornography, the judge in the case, Lowell A. Reed, Jr., ruled the law impermissibly vague and restrictive. "I may not turn a blind eye to the law in order to attempt to satisfy my urge to protect this nation’s youth by upholding a flawed statute, especially when a more effective and less restrictive alternative is readily available," he wrote in his decision.

Restating his earlier decision from when he first heard the case, Reed added, "Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”

Gonzales v. ACLU, No. 07-2539 (3d Cir. filed May 25, 2007).

By Isaac Arnsdorf, SPLC staff writer