*EPF308 06/30/2004
U.S. Supreme Court Blocks Child Online Protection Act
(Court rules the law violates free speech) (990)

By Charlene Porter
Washington File Staff Writer

Washington -- The U.S. Supreme Court has once again prohibited the implementation of a law designed to protect children from exposure to pornographic and sexually explicit material in the online environment.

Issued June 29, the decision by a 5-4 vote underscores the difficulty of the nation's task as it attempts to craft cyberspace policy. The ruling is called a major victory for free speech on the Internet by organizations that challenged the law in court, while the U.S. Justice Department is critical of the ruling.

"Congress has repeatedly attempted to address this serious need and the Court yet again opposed these common-sense measures to protect America's children, " said Justice Department spokesman Mark Corallo in response to the ruling. The Justice Department argued before the court in favor of allowing enforcement of the Children's Online Protection Act (COPA).

Pornographic material is plentiful on the Internet, and there is a broad social consensus that children should not inadvertently stumble over it as they wander through cyberspace. Vile though it may be in many people's opinion, this material is protected by the First Amendment to the U.S. Constitution. So attempts to protect children from pornographic material run the risk of violating the free-speech rights of the purveyors of sexually explicit material.

The Supreme Court found that the Congress took that risk and failed when it passed COPA.

"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," according to the court's ruling.

Repeated court actions since passage of the law in 1998 have blocked COPA from ever being enforced, but, as enacted by Congress, it would impose both criminal and civil penalties of up to $50,000 a day in fines to Web-site operators making online communications for commercial purposes that are harmful to minors.

The Center for Democracy and Technology, a nonprofit advocacy group, has opposed COPA on the grounds that its prohibitions are far too sweeping. "[I]t threatens to chill constitutionally protected speech including a wide range of social commentary and health information," said CDT in a position paper released shortly after the ruling.

COPA would criminalize sexual advice and education, Internet chat rooms in which sexual matters are discussed and Web sites for bookstores, art galleries or news media carrying sexually oriented content, according to the American Civil Liberties Union (ACLU), a lead plaintiff against the government in the case before the court.

The ACLU argued successfully that content-filtering technology was a better method for attempting to protect children from inappropriate content while still allowing mature, consenting adults to access that material. The Supreme Court agreed.

"Promoting filter use does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. Filters, moreover, may well be more effective than COPA," said the court's majority opinion.

In any free-speech case, the government must prove that it is using the least restrictive method to achieve its end. "The Government has not satisfied its burden to introduce specific evidence proving that filters are less effective," the court wrote.

The high court has sent the case back to a lower court for a trial that will hinge on whether the government can prove that filters are not effective.

Protecting children from exposure to unsavory material on the Internet has generated more than six years of debate in the United States. This prolonged debate and the emotions it has generated reflect similar discussions under way in many countries that are expanding their online accessibility.

Nations discuss their concerns and strategies for addressing them though the World Summit on the Information Society (WSIS), a process established by the United Nations. At one summit meeting in Geneva in December 2003, nations adopted a Declaration of Principles that addresses freedom of information with this language: "Everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Ambassador David Gross led the delegation to the WSIS meeting as U.S. coordinator for international communications and information policy and he was gratified that U.S. negotiators were successful in convincing summit delegates of the need to embrace that broad principle in order to foster the expansion of information technologies.

"That what's we're talking about here, trying to ensure to the maximum extent possible and reasonable that all peoples of the world have access to information, even information that may not be of a sort that any individual may find particularly good, " Gross said in a Washington File interview.

He said the Supreme Court ruling on COPA is also consistent with the position that international negotiators have tried to convey in talks with other nations that government regulators need to be cautious in attempting to impose restrictions on information.
"The court, recognizing the difficulty in this area [is] coming down on the side of freedom of expression. [The court said] whatever restrictions are appropriate ought to be narrowly tailored, using technology to ensure how narrow the restrictions are," said Gross.

The Supreme Court also recognized the vast international reach of the Internet, suggesting that COPA may not, Gross pointed out. The court's opinion notes that COPA restrictions and penalties could only be imposed on violators in the United States. The opinion suggests that operators of pornographic Web sites, for instance, might simply escape COPA by taking their operations off-shore, eluding U.S. prosecution while still disseminating the same offending material in the borderless online world.

The Supreme Court opinion in "Ashcroft v. ACLU" is available at: http://a257.g.akamaitech.net/7/257/2422/29june20041115/www.supremecourtus.gov/opinions/03pdf/03-218.pdf

(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)

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