Justices reject censoring Internet

WASHINGTON — WASHINGTON -- Wide-open free speech remains the rule on the Internet, the Supreme Court said yesterday, as it barred enforcing a federal law that would make it a crime for commercial Web sites to post sexually explicit material where children and teenagers could see it.

The 5-4 ruling sends a message to parents that it is up to them to monitor their family computer and, if necessary, install software filters to screen out pornography. The court said the free-speech rights of adult users of the Internet should not be sacrificed if there are other ways to protect children.


Software filters look to be a more effective way to shield minors from online pornography because they target the problem "at the receiving end," Justice Anthony M. Kennedy said.

This is preferable to permitting the government to go after Web sites whose customers are adults, Kennedy said. Moreover, since an estimated 40 percent of the pornography on the Web comes from overseas, a federal law targeting U.S. producers would not truly shield America's children, he said.


Yesterday's ruling in Ashcroft vs. the American Civil Liberties Union upheld a judge's order that has kept the government from enforcing the Child Online Protection Act of 1998, which would [See Court, 11a]

[Court, from Page 1a] impose a $50,000 fine and six months in prison for the operator of a commercial Web site that posted "patently offensive" photos or descriptions that were available to minors.

Under the law, Web site operators could defend themselves by requiring credit card numbers or an adult access number to enter the site.

The justices stopped short of declaring the law unconstitutional. Instead, they sent the case back to a court in Philadelphia for a trial to decide whether software filters would work as well as a criminal law in shielding children from online pornography.

"By preventing Attorney General [John] Ashcroft from enforcing this questionable federal law, the court has made it safe for artists, sex educators and Web publishers to communicate with adults about sexuality without risking jail time," said Ann Beeson, the ACLU's associate legal director.

Mark Corallo, a Justice Department spokesman, said in a statement, "The department will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web."

Yesterday's ruling came on the last day of the term.

During oral argument in early March, most of the justices sounded as if they agreed with U.S. Solicitor General Theodore Olson, who described the new law as a reasonable means to shield inquisitive minors from Internet pornography.


But that was not enough to convince a majority. The justices have repeatedly been wary of allowing the government to censor speech based on its content.

Kennedy's opinion in yesterday's ruling was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Clarence Thomas.

Thomas joined with liberals in casting a deciding vote to block enforcement of the law, and some conservative activists criticized him for it.

Like Kennedy, he usually votes with conservatives such as Justice Antonin Scalia, but they have disagreed repeatedly on whether sexually explicit material is entitled to the full protections of the First Amendment.

Thomas and Kennedy say the free-speech guarantees of the First Amendment cast doubt on any laws that censor speech, including text and photos involving sex. Scalia says less protection is due material that focuses on sex.

"Nothing in the First Amendment entitles the type of material covered by the [1998 law] to that exacting standard of review," Scalia wrote in a separate dissent. He added that "commercial entities which engage in the sordid business of pandering ... engage in constitutionally unprotected behavior."


While the government said the law targeted commercial pornographers, ACLU lawyers said it went much further. They said it would threaten the Web sites for art galleries, bookstores and sexual advice columnists.

One of the ACLU's plaintiffs, Dr. Mitch Tepper, runs a Web site that posts sexual advice for people with disabilities. "I am relieved that I no longer have to worry that Attorney General Ashcroft may come knocking at my door because someone may consider my Web site 'harmful to minors,'" he said.

Conservative activists said they were disappointed.

"Today's decision is yet another victory at the high court for pornographers, at the expense of America's children," said Pat Trueman of the Family Research Council. "It is not too much to ask that Web users who want to access commercial pornographic content prove they are adults."

Despite years of effort, Congress and the federal government have been unable to enforce an Internet pornography law.

Seven years ago, the Supreme Court struck down the Communications Decency Act, a broadly worded law that made it a crime to transmit "indecent" messages over the Internet. This law could have been read to make it a crime for friends to send each other off-color jokes by e-mail.


In response, Congress passed the narrower measure that was at issue in yesterday's decision. It was limited to commercial Web sites, and it covered sexually explicit material that was judged as "patently offensive" by contemporary community standards.

The Los Angeles Times is a Tribune Publishing newspaper.