High Court Bars Internet-Porn Statute From Taking Effect

A federal law aimed at protecting children from Internet pornography will remain on hold, following a 5-4 decision by the U.S. Supreme Court finding it likely that the statute’s goals can be achieved by means that carry less potential threat to Americans’ rights to free speech.

The 6-year-old legal tussle over the Child Online Protection Act—the subject of an earlier decision by the high court in 2002—now moves back to a federal district court for a trial on whether the law violates those First Amendment rights.

Enacted by Congress in 1998 after the high court struck down an earlier law that had a similar intent, the statute would impose criminal penalties on commercial Web publishers who failed to restrict access by minors to sexually explicit material through use of age-verification technology. It was challenged by the American Civil Liberties Union on behalf of various online publishers and others.

Justice Anthony M. Kennedy wrote in his June 29 majority opinion that filtering software designed to screen out sexually explicit content—while “not a perfect solution"—might well be more effective at achieving Congress’ purposes than the statute.

For that reason, a U.S. District Court judge in Philadelphia was right to block enforcement of the law while the case moved forward, he wrote, and that ban should remain pending a trial. In 2002, the high court had considered an earlier challenge to the injunction, and rejected the reasoning used to uphold it by the Philadelphia- based U.S. Court of Appeals for the 3rd Circuit.

In the current case, Ashcroft v. American Civil Liberties Union (Case No. 03-218), Justice Kennedy said that because the law imposes “content-based restrictions on speech,” the government bears the burden at trial of showing that it is constitutional.

“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 wrote. He was joined by Justices John Paul Stevens, David H. Souter, Clarence Thomas, and Ruth Bader Ginsburg.

That the act would be such a “repressive force” was rejected by Justice Stephen G. Breyer in a dissent joined by Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor. Nearly all of the material covered by the law would be considered obscene and therefore not constitutionally protected, Justice Breyer argued, so the law would impose “a burden on protected speech that is no more than modest.”

He also disputed the argument that filtering software is a “less restrictive alternative” to the law because it “cannot distinguish between the most obscene pictorial image and the Venus de Milo.”

In a separate dissent, Justice Antonin Scalia agreed that the law was constitutional, but argued that it should be subject to a less stringent standard of review.

School Board Case

In separate action near the end of its 2003-04 term, the high court declined to take up the appeal of a retired teacher who alleged that school officials in Columbus, Ohio, had violated his right to free speech during five meetings of the city school board from March 2000 to October 2002.

Representing himself, Ivy Featherstone contended that his rights were infringed, for example, when the board passed and then rescinded a policy prohibiting speakers from mentioning board members by name, and when board members joked and laughed instead of paying attention while he spoke during public-comment sessions.

A federal district judge granted summary judgment to the board, and a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, upheld that decision in March. On June 28, the justices declined without comment to hear the appeal in Featherstone v. Columbus City SchoolDistrict (Case No. 03-10093).