WASHINGTON — A law to help keep Internet pornography away from children died when the Supreme Court Jan. 21 declined to review a lower court’s decision.

The 1998 federal Child Online Protection Act (COPA) “merely required that pornography websites keep kids from viewing pornography,” said Alliance Defense Fund attorney Patrick Trueman, who served as the U.S. Justice Department’s chief prosecutor of child exploitation and obscenity under the Reagan and first Bush administrations. It did that, he said, by requiring that anyone viewing their site first demonstrate they were an adult by submitting a credit card, an adult-access code they could get online, a debit card, or some other proof. “That seemed to me a very minimal requirement.”

But after COPA was signed into law in 1998 by President Clinton, the American Civil Liberties Union (ACLU) immediately challenged it as a violation of free speech protected by the First Amendment. The law never went into effect. Last year, a federal appeals court in Philadelphia agreed with the ACLU, saying the law was “vague,” “overbroad” and unconstitutional, and on Jan. 21, the Supreme Court declined to reconsider the decision.

“COPA itself has been declared unconstitutional, and the courts have ordered that it never take effect,” said Chris Hansen, senior staff attorney for the ACLU. “The government has exhausted all possible appeals, and the case is over.”

U.S. Attorney Patrick Meehan, who worked on the case, said that barring the unlikely chance that the Justice Department under the Obama administration will petition the Supreme Court for reconsideration, “the court will have found [COPA] unconstitutional, and the ruling by the 3rd Circuit will stand as the legal precedent.”

Meehan said that, as he understands it, two arguments helped sway the Philadelphia judge’s decision. First was the argument that parents can adequately protect their children from online pornography by using Internet filters. Second, because of the global nature of the Internet, there was an inability to police the law. Pornographers could simply move offshore or to a Third World country, where the court would have no jurisdiction.

Whatever the judge’s reasoning, the lower court declared that COPA violated the right of free speech protected by the First Amendment. “It is apparent that COPA, like the Communications Decency Act before it, ‘effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,’” the lower court declared. By choosing not to review the case, the Supreme Court has at least temporarily let this decision stand.

ACLU legal director Steven Shapiro said the court’s decision not to review the case “affirms what we have been saying all along — the government has no right to censor protected speech on the Internet, and it cannot reduce adults to hearing and seeing only speech that the government considers suitable for children.”

Filters Not Enough

But Trueman said that the Supreme Court, “in an effort to expand the First Amendment far beyond what it was meant to be, has bypassed our nation’s children in this and other related pornography decisions.”

“From my perspective, this decision symbolizes what’s wrong with the Supreme Court,” said attorney Robert Peters, president of Morality in Media. “Not many years ago, no one would have thought there was a serious First Amendment question to requiring online pornographers to in some way verify age. It’s common sense to everyone but federal judges.”

Peters took issue with the lower court’s argument that online pornography filters will adequately protect kids — for several reasons. First, he said, “no filtering technology blocks all pornography, and as kids get older, they find ways to circumvent technology.” Second, for a variety of reasons, many parents won’t use filters. “Third, it takes only one kid with a cell phone and unrestricted access to the Internet and everyone in that kid’s group is going to have access to pornography,” Peters said.

Peters foresaw a further difficulty with allowing the lower court’s decision to stand. He said it’s bad enough that the Philadelphia court invalidated the “harmful to minors” standard as applied to the Internet, but this ruling could also affect enforcement of federal Internet obscenity laws.

“The ‘harmful to minors’ standard used in COPA was upheld by the United States Supreme Court in 1968 and in 1973,” Peters said. “So how, suddenly, did the ‘harmful to minors’ standard become vague and overbroad? When the Supreme Court upholds something, it’s not for lower courts to decide that it has become unconstitutional.”

Anti-pornography activist Donna Rice Hughes, president of Enough Is Enough, notes it’s disturbingly easy for a child to access online pornography accidentally. Using what she calls “deceptive marketing tactics” (such as misleading search terms and misspelled words), pornographers entice children into their websites.

“If you type ‘water sports’ into a Google search — just try it — you’ll get some serious hard-core urination pornography,” Hughes said. “Or you can type in other words: ‘toys’ or ‘cheerleaders.’ The point being that pornographers say they’re not going after kids, but they are. They often use popular icons, such as cartoon characters, in their search engines to land children on a pornography page.”

Hughes added, “Because COPA did not go into effect — and never will — we have had an entire generation of kids who have had a steady diet of pornography on the Internet.”

Not Over

Attorney Trueman said, “What happens is that kids go to these porn sites — Playboy, vividvideo, the whole range of tens of thousands of American companies that have these porn sites — and they see a lot of pornography. So the state of the law right now is that those porn sites are prohibited from selling hard-core pornography to adults. But they can give it to children.”

The Supreme Court’s decision not to hear the COPA case may end this particular legal battle over children’s access to online pornography. But Doug Myers, attorney at the National Legal Foundation, said, “As with any of these matters in the culture war, this is important enough that I doubt we’ve heard the last of this concern.”

Sue Ellin Browder writes

from Willits, California.