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Published in Print: May 30, 2001, as Supreme Court To Hear Challenge Of Internet-Porn Law

Supreme Court To Hear Challenge Of Internet-Porn Law

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The U.S. Supreme Court agreed last week to review the constitutionality of a 1998 federal law aimed at protecting children from sexually explicit material on the World Wide Web.

The court will consider the Bush administration's request to resuscitate the Child Online Protection Act, which was Congress's response to the Supreme Court's invalidation of the first major attempt to regulate indecent materials on the Internet.

The court ruled unanimously in 1997 (Reno, et al v. American Civil Liberties Union, et al) that the Communications Decency Act of 1996, which prohibited the transmission of indecent materials over the Internet to children under 18, was vague and overly broad in violation of the First Amendment's guarantee of free speech.

Congress attempted a narrower approach with the 1998 statute, known as COPA. The law, which has never taken effect because of legal challenges, applies only to commercial sites on the Web, and makes it illegal to provide to children under 17 any sexually explicit material that goes beyond "contemporary community standards."

Commercial Web sites can protect themselves from prosecution under the law if they take steps to restrict minors from accessing inappropriate material, such as requiring use of a credit card.

The American Civil Liberties Union and a coalition of commercial Web sites challenged the new law. A federal district court in Philadelphia and the U.S. Court of Appeals for the 3rd Circuit blocked implementation of the statute, ruling that it, too, likely violates the First Amendment.

The Philadelphia-based appeals court said in its ruling last year that the community-standards test, taken from the Supreme Court's pornography cases of the 1970s, was inappropriate for the Web.

"The Web is not geographically constrained," the court said. Under COPA, "Web publishers of material that may be harmful to minors must comply with the regulation imposed by the state with the most stringent standard or entirely forgo Internet communication."

In its appeal to the Supreme Court, the Bush administration said the 3rd Circuit court's ruling should be overturned because, among other reasons, it "suggests that there may be no constitutional means to protect children from the harmful effects of the voluminous amount of pornographic material on the World Wide Web."

The high court on May 21 accepted the appeal in Ashcroft v. American Civil Liberties Union (Case No. 00-1293). The case will be argued during the court's next term, which begins in October, with a decision likely by July of next year.

Papers filed with the court by the ACLU had urged the justices not to review the case, but the group issued a press release last week saying it welcomed another Supreme Court battle over regulation of speech on the Internet.

Web sites such as Salon, an online political and cultural magazine, and PlanetOut, which is aimed at a gay and lesbian audience, often publish sexually explicit information of interest to adults that might run afoul of the law and lead to censorship of their sites, the ACLU argues.

The 1998 statute should not be confused with another, more recent, act of Congress. The Children's Internet Protection Act, or CIPA, was passed late last year as part of a federal appropriations measure and was signed into law by President Clinton.

For schools, the 2000 law is of greater interest because it requires recipients of federal technology funds, such as E-rate discounts for telecommunications, to adopt Internet-safety policies that include the installation of filtering software to block out obscenity, child pornography, and other material that is "harmful to minors."

The federal education-rate program mandates that telecommunications providers offer discounted services to schools and libraries.

In March, the ACLU and the American Library Association filed a lawsuit in U.S. District Court in Philadelphia challenging CIPA, arguing that it would prevent both minors and adults from accessing Internet sites that are protected by the First Amendment.

Wiretapping Case

Separately last week, the Supreme Court ruled in a case in which a cellular-telephone call between teachers' union officials was the backdrop for an important First Amendment decision involving a federal wiretapping law.

The case of Bartnicki v. Vopper (No. 99-1687) stems from 1993 labor negotiations between the 5,400-student Wyoming Valley West district in Pennsylvania and the local affiliate of the National Education Association.

An unknown person intercepted and recorded a phone conversation between the affiliate's president and a union negotiator in which the president suggested a need to "blow off the front porches" of school board members who didn't support the union's demands for a salary increase. The tape ended up in the hands of two union opponents—a tax activist and a radio talk show host, who broadcast it repeatedly.

The union officials sued the two under a federal law that prohibits the interception of telephone conversations. The question for the high court was whether third parties can be held liable if they played no role in intercepting a telephone call.

In its May 21 decision, the court ruled 6-3 that third parties such as media organizations cannot be sued under the wiretapping law if they did not intercept the calls and the information was about a matter of public concern.

In the majority opinion, Justice John Paul Stevens cited another school-related wiretapping case to suggest that a media outlet might not be protected from the law if it participated in intercepting telephone calls. That case involved recorded telephone calls of a Dallas school board member uttering racist, sexist, and anti-gay remarks in the mid- 1990s.

The board member sued a Dallas television station that encouraged the interception of the conversations and aired reports about them. The board member's lawsuit against the station is pending.

Vol. 20, Issue 38, Pages 24,26

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