June 30, 2004
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).
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).
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).
Several broadcast programs reported on the Supreme Court ruling:
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