Supreme Court weighs Net porn law

In response to pressure from antiporn groups, Congress enacted the law in 1998, but it was instantly challenged in court by the American Civil Liberties Union and has never been enforced. In May 2002, the U.S. Supreme Court reviewed the case for the first time, but said an appeals court decision was insufficient to establish that the law was unconstitutional.

The 3rd U.S. Circuit Court of Appeals in Philadelphia responded with a broader ruling saying, once again, that that the law violated the First Amendment's free-speech guarantees. The Child Online Protection Act (COPA) "is not narrowly tailored to proscribe commercial pornographers and their ilk, as the government contends, but instead prohibits a wide range of protected expression," the 3rd Circuit Court said.

The Justice Department appealed to the Supreme Court, which accepted the case in a one-line order released Tuesday.

Tuesday's decision to hear the COPA case, which was expected, is likely to result in a high court ruling by next July that could clarify the legal rules applying to both hard-core pornography Web sites and mainstream publishers that may occasionally include some off-color content. Plaintiffs in the COPA case include the American Booksellers Foundation for Free Expression, Salon.com, ObGyn.net, Philadelphia Gay News and the Internet Content Coalition. CNET Networks, publisher of News.com, is a member of the Internet Content Coalition.

The broad spectrum of plaintiffs who sued to overturn COPA, coupled with the law's vague terms, combined to convince the appeals court that the law was too problematic to remain on the books.

In a 59-page opinion, the appeals court judges noted that there was already a law against "obscenity, and the broader category of criminal penalties attached to "harmful to minors" material could let prosecutors punish non-pornographic Web site operators. "For example, if a Web site whose content deals primarily with medical information, but also regularly publishes a biweekly column devoted to sexual matters which could be deemed 'harmful to minors,' the publisher might well be subject to criminal liability under COPA," the judges said.

COPA makes it a crime to publish "any communication for commercial purposes that includes sexual material that is harmful to minors, without restricting access to such material by minors." The maximum penalty is a $50,000 fine, six months in prison, and additional civil fines.

In the previous round, in 1999, the 3rd Circuit relied primarily on COPA's definition of "harmful to minors" material that offends local "community standards," concluding that Web sites that would be perfectly legal in liberal areas of the United States could be viewed as unlawful in more conservative jurisdictions.

The Supreme Court rejected that as an insufficient argument against the law. A plurality opinion written by Justice Clarence Thomas said, "If a publisher chooses to send its material into a particular community, this court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the nation."

Only Justice John Paul Stevens thought that the problems with variable "community standards" were by themselves sufficient to eviscerate COPA. "In the context of the Internet...community standards become a sword, rather than a shield," Stevens wrote in his lone dissent. "If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web."

COPA represents Congress' second attempt to restrict sexually explicit material on the Internet. The Supreme Court in 1997 rejected the Communications Decency Act, which covered "indecent" or "patently offensive" material, as unconstitutional.