January 22, 2009 in Nation/World

High court strikes down anti-pornography law

By David G. Savage Los Angeles Times
 

WASHINGTON – A long legal drive to shield children from sexually explicit material on the Web ended in failure Wednesday when the Supreme Court let a 10-year old anti-pornography law die quietly.

In striking down the law on free-speech grounds, judges said parents can protect their children on their own by installing software filters on their computers.

But fewer than half of parents do so, Bush administration lawyers had argued in an effort to revive the law.

Anti-pornography activists said the court’s action, coming a day after President George W. Bush left office, signaled an end to the government’s bid to restrict pornography on the Web.

“The timing puts an exclamation point on it. There’s very little reason for hope on this issue,” said Patrick Trueman, a Virginia lawyer who headed the Justice Department’s anti-pornography unit from 1988 to 1993. “I don’t think Congress will try again to protect children from pornography,” he said.

The Supreme Court had struck down an even broader law passed in 1996 that restricted “indecency” on the Internet. Following that ruling in 1997, Congress tried again with a narrow measure that targeted commercial purveyors of pornography on the Web. It was signed into law by President Bill Clinton late in 1998.

The Child Online Protection Act made it a crime to put sexually explicit material on a Web site for commercial gain unless the sponsor used some means to keep out minors. It never went into effect, however.

Judges repeatedly cited free-speech grounds and blocked it from being enforced.

The Supreme Court in 2004 said the law violated the First Amendment because it would crimp the rights of millions of adults. In a 5-4 decision, the justices sent the case back to a lower court in Philadelphia to decide if software filters were effective in screening out sexually explicit material.

Last year, the U.S. appeals court in Philadelphia struck down the law as unconstitutional, saying the software filters were “equally effective” as a means of protecting children from online pornography.

In October, however, Bush administration lawyers disputed that claim and appealed to the Supreme Court. If the law were finally struck down, it “would leave millions of children unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web,” they said.

Countering that contention, the American Civil Liberties Union said the challenged law would crimp free speech on the Web for adults and would not shield children, since at least half of the sexually explicit Web sites are outside the United States.

The justices considered the appeal in two closed-door meetings in recent weeks. They issued a brief order Wednesday dismissing the case of Mukasey v. ACLU without comment.


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