ASHINGTON,
June 29 — The Supreme Court on Tuesday rejected Congress's latest effort to
curb children's access to sexually explicit material on the Internet. But at
the same time it gave the Bush administration a second chance to defend the
law as a trial on its constitutionality goes forward in Federal District
Court in Philadelphia.
The 5-to-4 majority kept in place an order that the district court issued
in 1999, blocking enforcement of the Child Online Protection Act until its
validity can be resolved. The six-year-old law, which imposes criminal
penalties of as much as $50,000 a day on commercial Internet sites that make
pornography available to those younger than 17, has never taken effect.
The decision came on the final day of the Supreme Court's term. Justice
Anthony M. Kennedy, writing for the majority, said that the government must
now show why the voluntary use of filters to screen out material unsuitable
for children would not work as well as the law's criminal penalties. Filters
"impose selective restrictions on speech at the receiving end, not universal
restrictions at the source," Justice Kennedy wrote.
The opinion, which was joined by Justices John Paul Stevens, David H.
Souter, Clarence Thomas and Ruth Bader Ginsburg, suggested strongly that the
government would not be able to demonstrate that the penalties were better
than filters. Not only are filters less restrictive, but they "also may well
be more effective," Justice Kennedy said, because they can block pornography
from anywhere in the world, while the statute applies only to pornography
posted on the Web from within the United States.
Even so, the court kept open the possibility that the law, known as COPA,
might ultimately be upheld.
"This opinion does not hold that Congress is incapable of enacting any
regulation of the Internet designed to prevent minors from gaining access to
harmful materials," Justice Kennedy said.
He said the decision "does not foreclose the district court from
concluding, upon a proper showing by the government that meets the
government's constitutional burden as defined in this opinion, that COPA is
the least restrictive alternative available to accomplish Congress's goal."
Under the court's First Amendment precedents, government-imposed
restrictions must go no further than necessary to accomplish a "compelling
government interest" - in this instance, protecting children from harmful
material on the Internet. The government must show that it is using the
"least restrictive means" to achieve its goal.
The coalition of Internet publishers and free-speech groups that filed
suit to block the law have argued that the existence of filters showed that
criminal fines and prison sentences were not the least restrictive approach.
A year ago, the Supreme Court upheld a law that required public libraries to
install Internet filters as a condition of receiving federal money.
In a dissenting opinion on Tuesday, Justice Antonin Scalia said the
majority had subjected the Child Online Protection Act to too searching a
constitutional review. He said that because the commercial pornography that
is the law's target "could, consistent with the First Amendment, be banned
entirely, COPA's lesser restrictions raise no constitutional concern."
The three other dissenters, Justices Stephen G. Breyer and Sandra Day
O'Connor along with Chief Justice William H. Rehnquist, took a different
approach. They said, in an opinion written by Justice Breyer, that the law
should be interpreted to apply only to a narrow category of obscene material
and should be upheld on that basis.
"Properly interpreted," Justice Breyer wrote, the law "imposes a burden
on protected speech that is no more than modest," reaching only "borderline
cases" beyond speech that is obscene and that thus lacks legal protection.
Justice Breyer said that while the plaintiffs raised the specter that the
law might apply to famous novels or serious discussions of sexuality, this
was not the case. "We must interpret the act to save it, not to destroy it,"
he added.
Further, Justice Breyer said, there was little reason to suppose that
filters would achieve the purpose of shielding children. He said the
software "lacks precision" and depends for its effect on parents'
willingness to pay for it, install it and monitor their children's computer
use.
The court and Congress have had a tangled relationship on the question of
Internet pornography. In 1997, the court unanimously invalidated Congress's
first effort, the Communications Decency Act of 1996. Congress responded
quickly by passing the Child Online Protection Act the next year, responding
to a number of the court's concerns by defining pornography more precisely
and limiting the reach of the statute to commercial Web sites.
The American Civil Liberties Union, which had organized the successful
challenge to the first law, sued to block the new law as well, and won in
both the Federal District Court and the United States Court of Appeals for
the Third Circuit, in Philadelphia. The Third Circuit found then that the
law's reference to "contemporary community standards" would give "the most
puritan of communities" an effective veto over Internet content.
The Supreme Court, in a 2002 decision, disagreed with that analysis and
sent the case back to the Third Circuit. This time, the appeals court ruled
that the law did not meet the First Amendment's "least restrictive means"
test. The Bush administration then appealed that ruling to the Supreme
Court, leading to the decision Tuesday, Ashcroft v. American Civil Liberties
Union, No 03-218.
Mark Corallo, a spokesman for the Justice Department, expressed the
administration's dismay with 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," he said.
Senator Patrick J. Leahy, Democrat of Vermont, who was the only member of
the Senate to vote against the law, said he had warned that the law would
not withstand a constitutional challenge. "Technology has continued to
produce better solutions than this law offers," he said.
Ann Beeson, associate legal director of the A.C.L.U., who argued the case
at the court, said she was confident that the law would eventually be struck
down. "We urge John Ashcroft to stop wasting taxpayer dollars in defending
this unconstitutional law," she said.
There was some evidence that the outcome of the case shifted during the
nearly four months that the court had it under consideration. It is likely
that Justice Breyer initially had the assignment but lost the case to
Justice Kennedy as the result of a change of heart by another justice,
perhaps Justice Thomas. The result left Justice Breyer without a majority
opinion from among the dozen cases the court heard in March, while Justice
Kennedy had two majority opinions.