Supreme Court backs porn

[OnyxCougar]

from CNN
High court bars Internet porn law enforcement
Ruling sends law down to lower court for trial

Tuesday, June 29, 2004 Posted: 10:48 AM EDT (1448 GMT)

WASHINGTON (AP) -- The Supreme Court ruled Tuesday that a law meant to punish pornographers who peddle dirty pictures to Web-surfing kids is probably an unconstitutional muzzle on free speech.

The high court divided 5-to-4 over a law passed in 1998, signed by then-President Clinton and now backed by the Bush administration. The majority said a lower court was correct to block the law from taking effect because it likely violates the First Amendment.

The court did not end the long fight over the law, however. The majority sent the case back to a lower court for a trial that could give the government a chance to prove the law does not go too far.

The majority, led by Justice Anthony M. Kennedy, said there may have been important technological advances in the five years since a federal judge blocked the law.

Holding a new trial will allow discussion of what technology, if any, might allow adults to see and buy material that is legal for them while keeping that material out of the hands of children.

Justices John Paul Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg agreed with Kennedy.

The American Civil Liberties Union and other critics of the antipornography law said that it would restrict far too much material that adults may legally see and buy, the court said.

The law, which never took effect, would have authorized fines up to $50,000 for the crime of placing material that is "harmful to minors" within the easy reach of children on the Internet.

The law also would have required adults to use access codes and or other ways of registering before they could see objectionable material online.

For now, the law, known as the Child Online Protection Act, would sweep with too broad a brush, Kennedy wrote.

"There is a potential for extraordinary harm and a serious chill upon protected speech" if the law took effect, he wrote.

Kennedy said that filtering software "is not a perfect solution to the problem of children gaining access to harmful-to-minors materials."

He said that so far, the government has failed to prove that other technologies would work better.

The ruling in Ashcroft v. American Civil Liberties Union was the last of nearly 80 cases decided in a busy court term. The year's marquee cases involving presidential power to dealing with suspected terrorist were announced Monday, and mostly represented a loss for the Bush administration. (Monday's rulings)

Tuesday's pornography ruling is more nuanced, but still a blow to the government. It marks the third time the high court has considered the case, and it may not be the last.

Congress had tried repeatedly to find a way to protect Web-surfing children from smut without running afoul of the First Amendment.

The justices unanimously struck down the first version of a child-protection law passed in 1996, just as the Internet was becoming a commonplace means of communication, research and entertainment.

Congress responded by passing COPA, saying the new law met the Supreme Court's free-speech standards.

The American Civil Liberties Union challenged COPA immediately, arguing that the replacement law was every bit as unconstitutional as the original. The law has been tied up in the courts ever since.

In dissent, Chief Justice William H. Rehnquist and justices Sandra Day O'Connor, Antonin Scalia and Stephen Breyer said the law is constitutional and should be upheld.

Restrictions about who would be covered by the law and how it would be enforced "answer many of the concerns raised by those who attack its constitutionality," Breyer wrote.

The ACLU challenged the law on behalf of online bookstores, artists and others, including operators of Web sites that offer explicit how-to sex advice or health information. The ACLU argued that its clients could face jail time or fines for distributing information that, while racy or graphic, is perfectly legal for adult eyes and ears.

Material that is indecent but not obscene is protected by the First Amendment. Adults may see or purchase it, but children may not.

That is a tricky rule to enforce in the murky and anonymous reaches of the Internet. Most Web sites, chat rooms and other Internet venues are available to adults and minors alike, and commercial transactions do not take place face to face.

The Internet also presents a difficulty in translating old rules about what children could see and what they could not.

In writing the 1998 law, Congress said "contemporary community standards" should guide what is harmful to children. Civil liberties defenders said that the standard would lead to the most prudish place in America having veto power over the most liberal, because Internet material is available to them both.

The ACLU also said the community standards idea would force legitimate web site operators to self-censor, for fear of running afoul of someone's idea of what is inappropriate for children.

The 3rd U.S. Circuit Court of Appeals agreed, and ruled that the standards issue alone made the law unconstitutional. The Bush administration appealed to the Supreme Court, which delivered a partial victory for the government two years ago.

The court said at that time that, by itself, the community standards issue 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.

The Philadelphia-based federal appeals court then struck down the law a second time, on much broader First Amendment grounds, and the administration again appealed to the Supreme Court.

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

[Happy Monkey]

Clarence Thomas doesn't split from Scalia very often.

[Beestie]

This is what's great about America.

Congress passes a law then the Supreme Court "tests" it against the Constitution.

Whether you like the outcome of the ruling or not, you have to admire a beautiful machine working to well-oiled perfection.

And, as HM notes, you don't find Thomas and Ginsburg on the same side of many fences.

At one point I was given the responsibility of monitoring a 10 year old child's access to the net. I tried putting on all the AOL parental controls which had the effect of causing most of her searches to come up null. So I wiped out the controls completely and told her to go for it. I also told her that if she came across anything that upset or puzzled her, I would be right there in the next room, and she could come ask me about it. As a result, we had some interesting discussions about society's use of the human body (especially the feminine version) to sell advertizing and make money. At that age she wasn't much interested in porn, and after a few reassuring discussions, she confidently surfed the net to do her homework assignments. The government, as usual, seems to want to take control of our children out of our hands. It takes little more than a caring and compassionate adult to monitor and occasionally explain what's going on. In another instance, a teenaged boy of about 15 was staying in my home and I granted him free access to the 'net. I know he checked out some of the porno sites, but I would have thought him a highly unsual 15 year old had he not.

[Undertoad]

IMO that's exactly the right attitude

[Beestie]

Two issues here: pushing and pulling (no pun intended).

Going and looking for pr0n is one thing (pull).

Having pop-up ads with pr0n show up from sponsored links (that the content provider may not have control of) is something else (push).** If they just regulated the push I'd be happy about it. I think its a parent's job to deal with the pull.

**Imagine a web site for auto parts. Imagine the owner negotiating with a sponsor for a given amount of targeted pop-up ads depending on the user. Owner signs contract with company and code is installed to create targeted pop-ups. The owner does not know nor is it possible for him/her to see all possible pop-ups in advance - in addition, they may change over the contract period. So the daughter of a guy who checked out a pr0n site once goes to the auto parts store site for whatever reason and the spyware detects a pr0n cookie and creates a really pr0nographic pop-up. THIS is what I think needs to be regulated and not folks going and looking up what they will.

[I'm typing from work so pr0n is a metaphor]

Originally posted by Beestie
Two issues here: pushing and pulling (no pun intended).

Going and looking for pr0n is one thing (pull).

Having pop-up ads with pr0n show up from sponsored links (that the content provider may not have control of) is something else (push).** If they just regulated the push I'd be happy about it. I think its a parent's job to deal with the pull.

**Imagine a web site for auto parts. Imagine the owner negotiating with a sponsor for a given amount of targeted pop-up ads depending on the user. Owner signs contract with company and code is installed to create targeted pop-ups. The owner does not know nor is it possible for him/her to see all possible pop-ups in advance - in addition, they may change over the contract period. So the daughter of a guy who checked out a pr0n site once goes to the auto parts store site for whatever reason and the spyware detects a pr0n cookie and creates a really pr0nographic pop-up. THIS is what I think needs to be regulated and not folks going and looking up what they will.

[I'm typing from work so pr0n is a metaphor]

I am in agreement with you on this. Those damn pop-ups can be highly annoying and seem to appear out of nowhere. At one point when no was using my computer but me, I somehow acquired a cookie for a "teenaged sex kittens" pop-up, and the damn thing would run itself even when I wasn't on the net. It was more akin to a virus, than anything else. In exasperation, I completely wiped my hard drive to get rid of it, since it seemed to have infiltrated my system on several levels. The least they could have done was give me a pop-up of "teen-aged Tom Cats" or something. I have since discovered the joy of the pop-up blocker which keeps such nuisances to a minimum.

[Troubleshooter]

Originally posted by Undertoad
IMO that's exactly the right attitude

And exactly what will never happen.

I did tech support for an ISP and most people have no clue about their PC much less the intricacies and nuances of the internet. The children are much more savvy.

[Happy Monkey]

Originally posted by Troubleshooter
And exactly what will never happen.

I did tech support for an ISP and most people have no clue about their PC much less the intricacies and nuances of the internet. The children are much more savvy.

marichiko's attitude requires no clue about the internet. It was a purely person-to-person solution.

[Troubleshooter]

Originally posted by Happy Monkey
marichiko's attitude requires no clue about the internet. It was a purely person-to-person solution.

I'll concede that but raise your bid with a generation of apathetic and overworked parents.

[Happy Monkey]

I'll concede that, but counter with: Some things you just have to leave to the parents, even if some of them aren't up to it.

[glatt]

When I was a kid, I had to make do with droopy boobs in old National Geographic magazines, and a hidden stash of Playboys that my grandfather had in a closet. I only got to see those when we went to visit him. Didn't find them for years.

Kids today have so much more!

On the other hand, at least I was in my thirties before I saw goatse. Can you imagine the horror for a child seeing that messed up shit?

Originally posted by glatt


On the other hand, at least I was in my thirties before I saw goatse. Can you imagine the horror for a child seeing that messed up shit?

I've never seen that and don't even know what the word means, and it sounds like I'd be happier remaining ignorant of it, whatever it is. This does go to show a point, however, I use the net for research and discussion groups like this one. I'll admit that I've glanced at some of the soft porn sites out of curiosity, but I have never been assailed unwillingly by something truely horrific. Are you telling me that a 5th grader doing research for a science fair project could easily stumble into something that horrible? This is an honest question.

[xoxoxoBruce]

Mari's right (for a change:p ). The parents have to handle this one. As for Goatse, I'm not sure a young kid would know what it is. I am concerned about the recent spate of sexually explicit spam that's popping up in my email. And I mean explicit.

As I'm typing the above the CBS evening news came on with, "Children accessing porn on the internet. The Supreme Court says nothing can stop it." I'd call that misleading, no, I'd call that bullshit.

[SteveDallas]

I look at a lot of stuff on the Internet. A really wide variety. And I've used a lot of search engines to find a lot of stuff. And when I was surfing (and as Bruce says, email spam is another issue, and anybody who has auto-loading of images turned on in their email client probably oughta turn it off), I don't think I've ever been whisked to a site with a bunch of naked women "accidentally" or had a bunch of porno sites turn up in my search engine.