The Supreme Court agreed yesterday to extend a ban on enforcement of a federal law designed to shield minors from Internet pornography, ruling for the third time in seven years that a congressional effort to curb online obscenity threatens free speech. By a vote of 5 to 4, the court held that the government still has not proved that criminal penalties imposed on certain sexually oriented Web sites by the Child Online Protection Act (COPA) protect children without unduly limiting options for adults. The court sent the case back to a federal district court in Pennsylvania for trial, leaving an injunction against COPA's enforcement in place pending those proceedings.
"Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people," Justice Anthony M. Kennedy wrote for the court majority. "To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid, and that the Government bear the burden of showing their constitutionality."
After the earlier turfing of the Padilla case -- which seemed the easiest of the cases to decide, and they're craven cowards for ducking it that way -- I'm glad to see this case turn out as well as it did. A flat overrule of the law would have been preferable, but it may be that they couldn't marshall a majority for doing so without having the case heard on its merits.
I will admit that the line up of justices on one side or the other is moderately peculiar; you wouldn't normally expect to see Thomas with this majority, or Breyer with that dissenting group.
Speaking of Breyer, as reported by the Post, his dissent is mighty odd:
...In dissent were three conservatives -- Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Antonin Scalia -- and a liberal, Stephen G. Breyer. In his opinion, Breyer voiced measured exasperation with the majority's opinion, asking, "What else was Congress supposed to do?" The court's logic would unrealistically shift the burden of controlling children's access to pornography from the government to parents, Breyer argued, noting that filtering software is expensive and that many parents are not at home to supervise their children's computer use.
Wait ... parents can afford a computer but not filtering software? That's not a remotely logical position to take. For that matter, it's not the government's job to protect parents from the expenses inherent in raising their child. Nor, for that matter, is it the government's burden to protect children from information that parents don't want their children to have. To assert that would seem to be a wilful misreading of American history.
Excerpts from the decision are available at Newsday; the person who did the headline for Newsday's excerpts should be spanked: Online Porn Excerpts, indeed.
Posted by iain at June 29, 2004 10:08 PM
