Supreme Court deals death blow to antiporn law

The high court permanently puts on ice the 1998 Child Online Protection Act, which backers claimed was a constitutional way to protect children from Web porn.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
Caption: ACLU attorney Ann Beeson speaks to reporters after Supreme Court oral arguments on Web porn law in this 2001 file photograph. Declan McCullagh

The U.S. Department of Justice has been trying since 1998 to convince courts that a federal antiporn law targeting sexually explicit Web sites was constitutional.

No longer. On Wednesday, the U.S. Supreme Court rejected prosecutors' last-ditch defense of the Child Online Protection Act, meaning that the law will not be enforced.

COPA was enacted during the anti-Internet porn scares of the late 1990s, in part as a narrower answer to a previous Net censorship law that also met its demise in the courts. Any commercial Web site operator that posts "material that is harmful to minors" faces six months in prison and a fine of up to $50,000.

The American Civil Liberties Union filed suit against the law in Philadelphia, saying the prohibition was so broad and vague that even traditional publishers could face fines and imprisonment. Plaintiffs included Salon.com, which occasionally publishes racy material, the California-based lesbian-gay A Different Light Bookstore, PlanetOut, and a now-defunct coalition that included CNET Networks (publisher of CNET News), The New York Times Co., and Reuters. (A CNET executive testified against the law in January 1999.)

"It is not the role of the government to decide what people can see and do on the Internet," ACLU staff attorney Chris Hansen said in a statement on Wednesday. "Those are personal decisions that should be made by individuals and their families."

As a side note, it was the Justice Department's ongoing defense of COPA in 2006 that led to its subpoena to Google asking for a "random sampling" of 1 million Internet addresses accessible through Google's popular search engine and a random sampling of 1 million search queries submitted to Google over a one-week period.

Since the initial proceedings, the case has bounced around the court system without reaching a resolution. During that time, the Supreme Court handed down two preliminary rulings, once in 2002 and again in 2004.

The first time, it sent the case back to an appeals court with instructions to broaden its legal analysis beyond the law's interaction with community standards; the second time, it wanted a review of whether "technological developments" have affected the law's constitutionality.

The Supreme Court's 2004 ruling against the Justice Department and in favor of the ACLU commanded a narrow 5-4 majority, with justices Stephen Breyer, William Rehnquist, Sandra Day O'Connor, and (separately) Antonin Scalia dissenting.

The majority opinion, written by Justice Anthony Kennedy, upheld a temporary injunction barring prosecutors from enforcing COPA.

It was Breyer's dissent that had some free-speech advocates worried. It said COPA places "minor burdens on some protected material--burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography. There is no serious, practically available 'less restrictive' way similarly to further this compelling interest. Hence the Act is constitutional." Scalia went even further.

But the court didn't seem to want to revisit COPA a third time. Wednesday's ruling was a mere refusal to even hear the case, issued without explanation.

Even among antiporn groups, support for COPA waned as the years progressed, and federal prosecutors focused on obscenity and child pornography.

Another reason for the erosion of support may be that because the law was written so long ago, it's surprisingly limited. It applies only to material delivered "by means of the World Wide Web"--meaning that it doesn't cover peer-to-peer file sharing, the Usenet newsgroups that alarm New York's attorney general, games like Virtual Hottie 2, those naughty things happening in Second Life, videos watched via a third-party iPhone application, or streaming porn viewed through the VideoLAN Client, RealPlayer, or Windows Media Player desktop applications.