The Ethics & Religious Liberty Commission

Child online porn ban dies at high court

By Tom Strode - Jan 23, 2009 - 1

A congressional attempt to protect children from Internet pornography died a quiet death Jan. 21 after years of dispute in federal courts.

The Supreme Court announced without comment it had declined to review a lower-court ruling that permanently blocked enforcement of the Child Online Protection Act (COPA). The 1998 law aimed at prohibiting commercial websites from making sexually explicit material available to children under the age of 17, but it was never enforced.

The head of the Southern Baptist Convention’s ethics entity described it as “a sad day for our country and particularly for our children.”

“The Congress, by a large, bipartisan majority, has tried to pass laws protecting our nation’s children from online predators who use pornography to corrupt the hearts and souls of the innocent,” said Richard Land, president of the Ethics & Religious Liberty Commission. “Unfortunately, our Supreme Court has concluded that an adult’s supposed ‘right’ to see anything he wants to see trumps society’s obligation to protect children from exposure to such spiritual toxic waste. Untold human suffering will be the result of this stupefyingly wrong decision.”

In July, a three-judge panel of the Third Circuit Court of Appeals in Philadelphia affirmed a federal judge’s opinion blocking enforcement of COPA permanently. The judge, Lowell Reed, ruled in 2007 the law violated the First Amendment, which guarantees freedom of speech.

The Third Circuit judges said the law is vague, overly broad and censors speech that is constitutionally protected for adults. The appellate panel agreed with Reed’s opinion “that filters and the Government’s promotion of filters are more effective than COPA.”

The judicial battle over COPA extended back to 1999. After Reed issued a preliminary injunction against COPA’s enforcement that year, the Third Circuit affirmed his ruling. The decision was appealed to the Supreme Court, and the justices ordered the case returned to the Third Circuit in 2002 after disagreeing with the appeals court on a section of its opinion.

The Third Circuit again supported Reed’s preliminary injunction. This time, the Supreme Court affirmed the appeals court’s ruling on the injunction but sent the case back to Reed for a full trial, which led to his support for a permanent injunction.

The Supreme Court’s refusal to take the case was unsurprising. The two newest justices, Chief Justice John Roberts and Associate Justice Samuel Alito, had joined the court since it last addressed the case. Those they replaced, the late Chief Justice William Rehnquist and Associate Justice Sandra Day O’Connor, both dissented in the earlier decision, however. Therefore, there was no gain on the court for supporters of the law, unless another justice changed his vote.

Congress passed COPA as a response to the Supreme Court’s rejection of the Communications Decency Act (CDA). The justices struck down in 1997 the portion of CDA that barred the online transmission of indecent material but maintained the law’s provision on obscenity. CDA, which was enacted in 1996, barred online computer distribution of obscene and indecent material to children less than 18 years of age. COPA narrowed CDA’s target to commercial websites and lowered the age limit for a minor to children under 17.

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