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Supreme Court Blocks Child Online Protection Act; Critics Say Law Could Prevent Access to Sexual Education Information

June 30, 2004

The Supreme Court on Tuesday in a 5-4 decision blocked enforcement of the Child Online Protection Act, a 1998 law intended to prevent minors from accessing pornography on the Internet but that critics charge could prevent adults from accessing sexual health information, the Washington Times reports (Seper, Washington Times, 6/30). COPA makes it a crime for a commercial location where people under age 17 can gain access to it, unless the site makes a "good-faith effort" to screen out all but adult users. First-time violators of COPA could be sentenced to six months in jail and a $50,000 fine. The American Civil Liberties Union, the online magazine Salon and the women's health site OBGYN.net have challenged COPA, saying that it would force Web publishers to give up some of their constitutional rights to communicate some material to adults. The ACLU says that the law could block Web sites that provide explicit gynecological, safe sex or sexually transmitted disease prevention information. The 3rd U.S. Circuit Court of Appeals in March 2003 ruled the law unconstitutional for the second time, but the Bush administration appealed the case to the Supreme Court (Kaiser Daily HIV/AIDS Report, 10/15/03). The Supreme Court on Tuesday sent the case back to the 3rd District Court in Philadelphia and maintained the injunction preventing enforcement of the law until a judgment is reached in that trial, according to the Washington Post (Lane, Washington Post, 6/30).

Majority Opinion
Justice Anthony Kennedy, writing for the court majority, said that the government must demonstrate why voluntary filters used to prevent children from accessing "unsuitable" information on the Internet would be less effective than COPA, the New York Times reports (Greenhouse, New York Times, 6/30). Kennedy wrote, "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." He added that the court's opinion "does not foreclose the district court from concluding ... that COPA is the least restrictive alternative available to accomplish Congress' goal" (Henderson, Philadelphia Inquirer, 6/30). Kennedy said that instead of "seeking to limit speech" by imposing "harsh" criminal penalties on people who post material online, Congress could take action to encourage parents to install Internet filters to prevent their children from accessing certain information, according to USA Today. "COPA presumes parents lack the ability, not the will, to monitor what their children see," Kennedy wrote, adding, "By enacting programs to promote ... filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties" (Biskupic, USA Today, 6/30). Kennedy added that an estimated 40% of pornography on the Internet is produced in foreign countries, so a law that imposes criminal penalties on U.S. Internet pornography producers would not "truly shield America's children," according to the Los Angeles Times (Savage, Los Angeles Times, 6/30). Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg joined Kennedy in the majority opinion, according to the Atlanta Journal-Constitution (Geewax, Atlanta Journal-Constitution, 6/29).

Dissenting Opinions
Justice Stephen Breyer in a dissenting opinion wrote that he could not see how Congress could accomplish its objective of preventing minors from accessing certain information online with an approach any less restrictive than COPA, Long Island Newsday reports. Breyer wrote that COPA imposes "minor burdens on some protected material -- burdens that adults wishing to view the material may overcome at modest cost" (Phan, Long Island Newsday, 6/30). Breyer added, "The upshot is that Congress could reasonably conclude that, despite the current availability of filtering software, a child protection problem exists," adding, "It also could conclude that a precisely targeted regulatory statute, adding an age-verification requirement for a narrow range of material, would more effectively shield children from commercial pornography" (Cohen, Newark Star-Ledger, 6/30). Chief Justice William Rehnquist and Justice Sandra Day O'Connor joined Breyer in the dissenting opinion, according to USA Today (USA Today, 6/30). Justice Antonin Scalia in a separate dissenting opinion wrote that the majority opinion subjected COPA to too strict of a review, according to the New York Times. He added that because the commercial pornography targeted by COPA "could, consistent with the First Amendment, be banned entirely, COPA's lesser restrictions raise no constitutional concern" (Greenhouse, New York Times, 6/30).

Reaction
ACLU attorney Ann Beeson said that the court's decision "has made it safe for artists, sex educators and Web publishers to communicate with adults about sexuality without risking jail time" (Egelko, San Francisco Chronicle, 6/30). Sen. Patrick Leahy (D-Vt.) -- the only senator to vote against COPA -- said that the court decision "vindicated his position." He added, "Technology has continued to produce better solutions than this law offers." Michael Tepper, creator of the Web site sexualhealth.com who joined the ACLU in challenging COPA, said, "I am relieved that I no longer have to worry that Attorney General [John] Ashcroft may come knocking at my door because someone may consider my Web site 'harmful to minors'" (Schwartz, New York Times, 6/30). Beeson said that ACLU is "very confident" that the lower court will find COPA unconstitutional (Biskupic, USA Today, 6/30). The Bush administration was "dismayed" by the court's ruling, according to the Chronicle. "Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped," Department of Justice spokesperson Mark Corallo said, adding, "Congress has repeatedly attempted to address this serious need, and the court yet again opposed these common-sense measures to protect America's children" (San Francisco Chronicle, 6/30). Pat Trueman, senior legal adviser for the Family Research Council, said that the decision is "yet another victory at the high court for pornographers at the expense of America's children" (McGough, Pittsburgh Post-Gazette, 6/30).

Broadcast Coverage
Several broadcast programs reported on the Supreme Court ruling:

Online Beeson and Jan LaRue of Concerned Women for America are scheduled to answer questions about the court's decision in a washingtonpost.com discussion on Wednesday at 1 p.m. ET and 3 p.m. ET, respectively. The complete transcript of the Beeson's discussion will be available online. The complete transcript of LaRue's discussion also will be available online.

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Reprinted with permission from kaisernetwork.org. You can view the entire Kaiser Daily HIV/AIDS Report, search the archives, or sign up for email delivery at www.kaisernetwork.org/dailyreports/hiv. The Kaiser Daily HIV/AIDS Report is published for kaisernetwork.org, a free service of the Kaiser Family Foundation, by The Advisory Board Company. © 2004 by The Advisory Board Company and Kaiser Family Foundation. All rights reserved.




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