Anti-Online Porn Law Dies Quietly in Supreme Court

By Mark Sherman, The Associated Press
Originally published by www.law.com, January 22, 2009

A federal law intended to restrict children's access to Internet pornography died quietly Wednesday at the Supreme Court, more than 10 years after Congress overwhelmingly approved it.

The Child Online Protection Act would have barred Web sites from making harmful content available to minors over the Internet. The law had been embroiled in challenges to its constitutionality since it passed in 1998 and never took effect.

The Internet blocking law did not make it as far as a high court hearing. The justices rejected the government's final attempt to revive the law, turning away the appeal without comment.

The American Civil Liberties Union led the challenge to the law on behalf of writers, artists and health educators. "For over a decade the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional," said Chris Hansen, the ACLU's lead attorney on the case. "It is not the role of the government to decide what people can see and do on the Internet. Those are personal decisions that should be made by individuals and their families."

A federal appeals court in Philadelphia earlier ruled that the law would violate the First Amendment, saying filtering technologies and other parental control tools are a less restrictive way to protect children from inappropriate content online.

The act was passed the year after the Supreme Court ruled that another law intended to protect children from explicit material online -- the Communications Decency Act -- was unconstitutional.

The Bush administration had fought hard to have the law take effect.

In 2006, the Justice Department subpoenaed internal files from dozens of Internet service providers and other technology firms, including AT&T Inc., Comcast Corp., Cox Communications Inc., EarthLink Inc., Symantec Corp. and Verizon Communications Inc. as part of its defense of the law.

But senior U.S. District Judge Lowell Reed Jr. ruled in 2007 that software filters work much better than the law would. Reed also said the law failed to address threats that have emerged since it was written -- including online predators on social-networking sites -- because it targets only commercial Web publishers.

The 3rd U.S. Circuit Court of Appeals in Philadelphia upheld Reed's ruling.

Critics also said that pornographers and others could simply base their operations offshore, beyond the reach of U.S. authorities.

In an earlier test of the law, the Supreme Court in 2004 upheld an order blocking its enforcement on the grounds that the law probably was unconstitutional. The five justices who made that ruling remain on the Court.

Still, it was unusual for the Court to kill a major federal law that had an administration's backing, without a hearing.

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