Congressional Nanny Rebuked Again

Online regulation of sexually-oriented Internet content sent back for full review

Continuing an almost unbroken string of victories for free speech advocates challenging congressional attempts to shield children from exposure to online pornography, the Supreme Court ruled 5-4 on June 29 that a federal district court in Philadelphia had properly issued a preliminary injunction to stop the Child Online Protection Act from going into effect.

The court ruled that the government had not met its burden of showing that delaying implementation of the act until a court can determine whether it violates the First Amendment would cause irreparable injury to the public.Justice Anthony Kennedy wrote the decision for the Court, which was joined by Justices John Paul Stevens, David Souter, Clarence Thomas, and Ruth Bader Ginsburg. In a separate concurring opinion that was joined by Ginsburg, Stevens wrote that he would have declared the act unconstitutional, rather than sending the case back to the district court for a hearing.

Justice Stephen Breyer, in a dissent joined by Chief Justice William Rehnquist and Justice Sandra Day O’Connor, argued that the compelling interest of protecting children and the technological choices made by Congress in the law were sufficient to uphold the law against the challenge it was a content-based regulation of speech. Breyer found that the statute could survive even the most stringent judicial review. Justice Antonin Scalia, writing only for himself, reiterated his long-standing view that the constitution provides little protection to pornographic content, and that strict scrutiny was therefore not even required.

In the law, Congress provided that anybody who puts sexually-oriented material that might be “harmful” to minors online for commercial purposes must place the material behind some sort of age verification screening process, involving either credit card access or use of an age verification system. The American Civil Liberties Union (ACLU), which filed the suit as lead plaintiff, argued that this was too restrictive for First Amendment purposes, and that less restrictive alternatives are available in the form of blocking filters. The ACLU argued that adults should not face encumbrances in accessing sexually-oriented materials on the Internet.

In his opinion, Kennedy emphasized that the question before the Court was narrow—not whether the statute is unconstitutional, but rather whether the ACLU had shown that there was a serious enough constitutional question to delay implementation until a full review could be completed.

For the majority of the court, this was not a difficult question. Kennedy pointed out that as long as the plaintiff shows that the constitutional question is at least a “close” one and that the consequence of letting the statute go into effect would threaten criminal penalties for protected speech, then issuing a preliminary injunction is not an abuse of a district court’s discretion.

The ACLU had pointed out that since much sexually-related content on the Internet originates from foreign sources not subject to U.S. law, filter technology may be more effective in stopping children from seeing Internet pornography, while leaving adults free to access it.

Kennedy agreed, pointing to technological advances that are making filters more effective, and noted the potential harm to free speech of letting the statute go into effect and then throwing the burden on particular Internet content providers to raise these issues in defending a criminal prosecution. Stevens and Ginsburg directly challenged the statute’s constitutionality.

“To be sure,” wrote Stevens, “our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. As a parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or simple backup to, adult oversight of children’s viewing habits.”

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