The Supreme Court agreed Oct. 14 to revisit the thorny question of how to protect children from explicit material on the internet without resorting to unconstitutional censorship.

The case asks whether, in the name of children, Congress wants to restrict too much material that adults have the right to see or buy. On a more practical level, the court will decide whether the government can require some form of an adults-only screening system to ensure that children cannot see material deemed harmful to them.

This is the second time in as many years that the high court has reviewed an internet pornography law passed by Congress in 1998 but never enforced.

The American Civil Liberties Union, representing booksellers, artists, operators of explicit web sites, and others, challenged the Child Online Protection Act as an unconstitutional damper on free speech.

The Bush administration appealed to the high court, arguing that children are “unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web.”

The law, known by the acronym COPA, is a reasonable solution to the proliferation of online pornography, Solicitor General Theodore Olson told the court. The law targets commercial pornographers, he said.

The ACLU replied that the law could make criminals of many people who use the internet for legitimate, often health-related reasons. Those who operate web sites about gynecology and safe sex could be covered, as could Mitch Tepper, who posts explicit how-to sexual advice for disabled people, the ACLU claimed.

Olson said the main target is commercial pornographers who use sexually explicit “teasers” to lure customers.

The free teasers are available to nearly anyone surfing the internet, children and adults alike. The pictures sometimes appear even when computer users are not seeking out pornography. The teasers typically lead potential customers to a web site that may require payment and age verification.

COPA could mean six months in jail and $50,000 in fines for first-time violators and additional fines for repeat offenders. It is on hold pending court challenges.

A federal appeals court has twice struck down the law, most recently and conclusively in March with a ruling that the law is riddled with problems that make it “constitutionally infirm.”

Previously, the 3rd U.S. Circuit Court of Appeals had ruled the law unconstitutional on grounds that it allowed internet content to be judged by “contemporary community standards.”

The ACLU and other opponents of the law said that was a meaningless or risky standard to apply to the internet, which is available equally to the most conservative town or household and the most liberal.

The notion of what is acceptable can shift, and it would effectively give a veto to the most conservative dot on the U.S. map, the law’s opponents argued.

In its first crack at COPA, the Supreme Court looked only at the standards question. In a splintered ruling last year, the high court delivered a partial victory to the government by ruling that the evaluation standard alone did not make the law unconstitutional.

The justices then sent the case back for a fuller examination of the other free speech objections raised by the ACLU.

Another law, the Children’s Internet Protection Act (CIPA), requires schools and libraries receiving federal funding for computers and internet access to use “technology protection measures” such as filtering software to shield kids from harmful material online.

CIPA, which took effect in 2001, was upheld by the Supreme Court earlier this year (see “High court upholds web filtering law,” Although filtering software can block access to some constitutionally protected material, CIPA passes muster because adults in charge can disable the technology whenever they deem appropriate, the court ruled.

The COPA case is Ashcroft v. ACLU, 03-218.


U.S. Supreme Court