The U.S. Supreme Court, by a 5-4 vote, upheld an earlier injunction against the Child Online Protection Act (COPA), a 1998 law that was intended to protect minors from viewing sexually explicit material online. The Court remanded the case to a lower federal court in Philadelphia for a trial on the merits.
If passed, COPA would require commercial pornographers to screen out minors by requiring identification or credit cards for adult users. COPA applies to material that is either legally obscene for adults or harmful to minors and punishes violators to up to six months in jail and a $50,000 fine.
Justice Anthony M. Kennedy, representing the majority that opposed the Act, said it is too broad and would conflict with constitutional rights to free speech. He held that technology such as online content filters available to parents were sufficient in protecting minors from online pornography.
However, the Senior Legal Advisor of Family Research Council, which filed a brief in the case, disagreed that filtering software was enough to censor the material to minors.
"With spam emails and pop-up ads littering the internet, it is easy to see how a child could unwittingly end up on a pornographic web site," said Advisor Pat Trueman in a statement.
Although Kennedy admitted such online filters were "not a perfect solution," he explained in his statement that COPA was turned down because it was not shown to be less restrictive in barring free speech than the alternative.
COPA can still pass in Ashcroft v. ACLU (American Civil Liberties Union) if the government can show that the Act is the "least- restrictive means" of protecting children from the debated material.
Justices opposing the decision did not consider the constitutionality of COPA to be an issue.
"This business (commercial pornography) could, consistent with the First Amendment, be banned entirely," wrote Justice Antonin Scalia. Therefore, "COPA's lesser restrictions raise no constitutional concern."
Justice Stephen Breyer said he "cannot accept the conclusion that Congress could have accomplished its statutory objective - protecting children from commercial pornography on the Internet - in other, less-restrictive ways."
Trueman added, "It is not too much to ask that web users who want to access commercial pornographic content prove they are adults."
Other pro-family groups such as Concerned Women for America also denounced the ruling.
“This is a devastating defeat for kids, parents and the Constitution,” said Jan LaRue, CWA’s chief counsel. “Minors have no First Amendment right to view this kind of porn and smut-peddlers have no right to expose them to it."
Many conservatives and pro-family were surprised that the majority, which included pro-choice Justices, was joined by pro-life Justice Clarence Thomas, who is known to be one of the two most conservative judges in the High Court.
FRC's President Tony Perkins summarized the purpose of the COPA: "This law does not impede the decisions of adults who seek to view pornographic material. It merely recognizes what's common sense: we should concentrate on making it difficult for children to access porn rather than making it easier.”
Jay Sekulow of American Center for Law and Justice put the logistical sense of the law into perspective in an editorial published on the Wednesday edition of USA Today.
"If it is OK to check the IDs of patrons at sexually oriented businesses and prohibit the selling of porn to minors, why shouldn't the same rules apply online?," wrote Sekulow.
Daniel Weiss, family media and sexuality analyst of Focus on the Family, "sees this as another example of an activist Court putting the profits of pornographers ahead of the safety of children under the guise of 'protecting free speech'," according to a released statement in response to the decision.
American Center for Law and Justice, FRC, Focus on the Family, Morality in Media and Wallbuilders were organizations which all filed briefs supporting the law in the case.
