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Supreme Court Upholds COPA Ban

UPDATED: The U.S. Supreme Court Tuesday upheld a lower court ruling barring enforcement of the Child Online Protection Act (COPA), a 1998 law enacted by Congress to protect minors from exposure to sexually explicit materials on the Internet.

On a 5-4 vote, the court sent the case back to the lower court for a possible trial to evaluate whether technological solutions, such as filtering software, may be a superior alternative to content-based restrictions of free speech.

"The government has failed, at this point, to rebut the plaintiffs' contention that there are plausible, less restrictive alternatives to the statute," wrote Justice Anthony Kennedy in the majority court opinion. "Substantial practical considerations, furthermore, argue in favor of upholding the injunction and allowing the case to proceed to trial."

Agreeing with Kennedy were Justices John Paul Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg.

A Philadelphia court has twice ruled that COPA unconstitutionally restricts free speech. The first COPA rejection was based on the fact that the law relies on community standards and the Internet is inherently a non-geographic medium. In its second rejection of COPA, the appeals court said the law was not narrowly tailored to punish commercial pornographers but "instead prohibits a wide range of protected expression."

The U.S. Supreme Court in 2001 upheld the first lower court ruling, but sent the case back for further review. Tuesday's ruling affirms the second appeals court decision.

The American Civil Liberties Union (ACLU) has led the opposition to COPA, which is supported by a wide range of groups, including the Association of American Publishers, the American Society of Newspaper Editors, the Recording Industry Association of America, the Center for Democracy and Technology and Volunteer Lawyers for the Arts.

Although it has never been enforced, COPA requires commercial Web site operators to use credit cards or other adult access systems to prevent minors from viewing the material. COPA imposes criminal and civil penalties of up to $50,000 per day for violations.

"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," the court ruled Tuesday. "To guard against that threat, the Constitution demands that content-based restrictions on speech be presumed invalid, and that the government bear the burden of showing their constitutionality."

The justices said the government has so far failed to show that technological solutions are not more practicable.

"Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source," the majority court decision states. "Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Promoting filter use does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished."

Kennedy wrote that the court acknowledges filtering software is not a "perfect solution because it may block some materials not harmful to minors and fail to catch some that are," but the government has not "satisfied its burden to introduce specific evidence proving that filters are less effective."

Kennedy also wrote that the factual record in the case "does not reflect current technological reality -- a serious flaw in any case involving the Internet, which evolves at a rapid pace. It is reasonable to assume that technological developments important to the First Amendment analysis have occurred in the five years."

The Department of Justice was not immediately available for comment as to whether or not it would pursue the case in the lower court.

"We urge [Attorney General] John Ashcroft to stop wasting taxpayer dollars in defending this unconstitutional law," ACLU Associate Litigation Director Ann Beeson said in a statement. "If he insists on going back to trial, we are confident that the lower court will again find that the law went too far. As the Supreme Court today pointed out, there are even more ways today to protect children online than existed when Congress passed this law."

In a dissenting opinion, Justice Stephen G. Breyer argued COPA does not block free speech.

"The act does not censor the material it covers. Rather, it requires providers of the 'harmful to minors' material to restrict minors' access to it by verifying age. They can do so by inserting screens that verify age using a credit card, adult personal identification number, or other similar technology," Breyer wrote. "In this way, the act requires creation of an Internet screen that minors, but not adults, will find difficult to bypass."

The conservative American Center for Law and Justice (ACLJ) issued a statement that it was disappointed with the decision.

"The Supreme Court missed an important opportunity to act now to protect our nation's young people. By sending the case back to a lower court and blocking COPA from taking effect, the high court further delays consideration of an important law needed to protect children," said Jay Sekulow, the ACLJ's chief counsel. "We are hopeful that the government will be able to establish that Congress acted properly and in a constitutional manner in enacting this law."