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Judge blocks law that protects minors from sexual Web sites; Decision cites adults' right to see material, but notes wide support for controls


WASHINGTON -- Saying that the Internet must be kept open to "unconventional" messages and images, a federal judge barred the government yesterday from enforcing a new law that bans online materials considered to be "harmful to minors."

The law -- Congress' second try at protecting computer-using children because the Supreme Court nullified the first -- intrudes too heavily upon adults' constitutional right to see and read sexually explicit materials, U.S. District Judge Lowell A. Reed Jr., of Philadelphia, ruled.

"The First Amendment," he said, "was designed to prevent the majority, through acts of Congress, from silencing those who would express unpopular or unconventional views."

While voicing his personal regret that his order will "delay once again the careful protection of our children," the judge said that the Constitution left him no choice but to act. He added:

"We do minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."

In another personal reference, the judge said he "and many parents and grandparents would like to see the efforts of Congress to protect children from harmful materials on the Internet ultimately succeed."

He said that is the "will of the majority of citizens in this country."

Reed did not strike down the law, but he did predict that, when the challenge goes to a full trial, the law will not withstand the constitutional test of "strict scrutiny."

And his order does block the government from ever applying the law to any Internet transmissions that occur while the case moves through the courts, even if the law is ultimately upheld.

The law was challenged by three groups that defend free expression on the Internet, along with operators of Web sites and preparers of Internet materials.

The Clinton administration, though harboring doubts about the constitutionality of the law before President Clinton signed it in October, has defended it fully in court and may appeal Reed's order. The Justice Department had no comment last night.

Congress' first attempt to attack sexually explicit ideas or pictures on the Internet -- the Communications Decency Act -- was struck down by the Supreme Court in June 1997. That decision, the first on constitutional protection for global computer-based networks, said the First Amendment applied to the Internet.

That law was aimed at "indecent" and "patently offensive" materials aimed at minors. The court said Congress had not justified the interference that would result in adult access to such materials.

The Constitution allows Congress to bar obscenity, even for adult audiences, but not indecency when adults seek access to it, the court said.

In reaction, Congress passed the Child On-line Protection Act last year, making it a crime for anyone to put on the Internet "any communication for commercial purposes" if a minor could get access to it, if it includes "any material harmful to minors" -- defined as sexually explicit.

Any violation can lead to a $50,000 fine and six months in prison. If the violation is intentional, the fine can increase another $50,000 and apply to every day the violation continues. In addition, civil penalties of up to $50,000 are allowed for each violation.

Individuals charged with violating the law can defend themselves by proving they have acted to bar minors' access to harmful materials by requiring a credit card, an adult personal identification number or an access code, or by using an electronic mechanism for verifying age.

One target of the law is Web sites offering "teasers," free sexually explicit images and animated graphics that are designed to entice a computer user to pay a fee and browse the whole Web site.

Reed rejected the administration's argument that the new law is aimed only at "commercial pornographers." He said there was evidence that many Web site operators or providers of Internet ideas or pictures could potentially run afoul of the law merely because some part of their offering was sexually explicit.

One of the challengers, he noted, is the operator of a Web site that gives disabled people advice about how to have sex.

Those operators, the judge said, would lose business that they are constitutionally entitled to offer, if adults are deterred by credit card or other means of identifying themselves in order to obtain access to restricted sites.

Reed also said that such operators would censor themselves rather than run the risk of prosecution, since they would not be able to police every item for potential harm to minors.

Congress, the judge found, could have acted to protect children, and still not interfered with adults' access, if it had left it to parents to obtain and use blocking or filtering technology at home.

Pub Date: 2/02/99

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