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Published in Print: May 22, 2002, as Court Leaves Future of Online-Protection Law Uncertain

Court Leaves Future of Online-Protection Law Uncertain

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The U.S. Supreme Court last week partially upheld a federal statute designed to protect children from pornography on the World Wide Web, but its splintered ruling sent the law back to a lower court for further review and left doubt about whether it would ultimately be upheld.

At issue in Ashcroft v. American Civil Liberties Union (Case No. 00-1293) was the Child Online Protection Act, a 1999 statute that makes it a crime for commercial Web sites to make sexually explicit materials available to minors. The law seeks to restrict "material that is harmful to minors" based on "contemporary community standards."

No opinion of the court commanded a majority, but Justice Clarence Thomas said in the main opinion that the law's reliance on community standards did not automatically render it in violation of the First Amendment's guarantee of free speech, as the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, had ruled.

The Supreme Court continued to bar the law from taking effect and ordered the 3rd Circuit court to consider several other issues raised in the challenge to the law by free-speech advocates.

"The scope of our decision today is quite limited," Justice Thomas said in the May 13 ruling.

Only Justice John Paul Stevens said he would uphold the 3rd Circuit ruling that struck down the statute on its face. He said a community standard, which comes from the court's obscenity decisions of the 1970s, could not be applied to the borderless world of cyberspace.

"In the context of the Internet, ... community standards become a sword, rather than a shield," Justice Stevens said. "If a prurient appeal is offensive in a Puritan village, it may be a crime to post it on the World Wide Web."

The case points up the difficulty of regulating speech on the Internet. The high court in 1997 struck down Congress' first attempt to protect children from sexually explicit material online. It said the 1996 Communication Decency Act suppressed a large amount of speech that was legal for adults to receive.

The Child Online Protection Act, or COPA, was challenged by a coalition of free-speech advocates and commercial Web site operators, who argued that it was still overly broad. The 3rd Circuit court ruled that because Web sites cannot limit their reach by geography, the law's reliance on community standards for determining what would be harmful to minors made it unconstitutional.

Four separate Supreme Court opinions in the case agreed only that the 3rd Circuit should give COPA a more thorough review. Justice Thomas, joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia, said the community-standards approach could be workable without violating the First Amendment.

Justices Sandra Day O'Connor and Stephen G. Breyer each wrote opinions suggesting that the First Amendment would require the law to define a national standard for what materials on the Web would be harmful to minors.

Justice Anthony M. Kennedy, in an opinion joined by Justices David H. Souter and Ruth Bader Ginsburg, raised doubts that the law would ultimately be upheld. He also raised the issue of how to apply the requirement, from the court's obscenity cases, of evaluating a challenged work "as a whole" when the work at issue was a Web site.

Sex Discrimination

Separately last week, the court declined to hear the appeal by female athletes who unsuccessfully sought damages from the University of Minnesota in a Title IX case over sports equity.

Six former athletes alleged in a lawsuit that the university's Duluth campus violated Title IX, which prohibits sex discrimination in schools receiving federal funds, by maintaining unequal sports opportunities for women.

Both a federal district court and the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled that the women could not win damages. The 8th Circuit court said the university was not "deliberately indifferent" to its Title IX compliance obligations because it was responsive to a complaint from the federal Department of Education's office for civil rights.

The appeal was Grandson v. University of Minnesota (No. 01-1261).

Vol. 21, Issue 37, Page 26

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