The justices are examining free-speech ramifications of the 1998 Child Online Protection Act, which would make it a crime for commercial Web sites to knowingly place material that is “harmful to minors” within their unrestricted reach.
COPA could mean six months in jail and $50,000 in fines for first-time violators and additional fines for repeat offenders. It is on hold pending court challenges.
The justices struck down the first version of a child-protection law passed in 1996, and refused to sign off on a replacement law passed two years later. That law has never taken effect. The case, Ashcroft v. ACLU, is now before the justices for a third time.
The American Civil Liberties Union is challenging the law on behalf of Web site operators, online bookstores and artists. ACLU claims COPA violates the First Amendment guarantee of free speech.
The ACLU argued in a court filing that COPA was unconstitutional censorship when it was passed and is both unconstitutional and unnecessary now. COPA ignores other, potentially effective tools to protect children, such as filtering software, the ACLU said.
“COPA was passed in 1998, when the Internet was still relatively new and less understood,” ACLU lawyers argued in a filing. “COPA’s bludgeon suppresses an enormous amount of speech protected for adults and is unnecessary and ill-tailored to address the government’s interest in protecting children from sexually explicit content.”
Free pornography is easy to find online, placed there as a hook to lure paying customers, the Bush administration and its backers argue. Minors can find that free material as easily as adults, although it would be illegal for a store owner to sell them a paper copy of a magazine that shows the same images.
“Minors today can search the Web as easily as they can change television channels,” Solicitor General Theodore Olson, the Bush administration’s top Supreme Court lawyer, argued in a court filing. “Thus, in the seclusion of their homes or those of friends, unsupervised minors can, with the click of a mouse, visit one pornographic site after another.”
Type in the words “free porn” on Google, and you get a list of more than 6 million websites, Olson told the court. “I didn’t have time to go all the way through those sites,” he said.