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Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


By MARYCLAIRE DALE
Associated Press Writer


PHILADELPHIA (AP) - More than a decade after Congress first tried to police the Internet for pornography, a federal judge cast doubt Thursday on whether the government can craft such a law without restricting free speech.

A federal judge in Philadelphia blocked enforcement of the Child Online Protection Act, the second attempt by lawmakers to stop online pornography at the source.

Senior U.S. District Judge Lowell Reed Jr. called the 1998 law unconstitutionally vague and said it could have a chilling effect on Web publishers.
"Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," he wrote.

Reed said the law fails to address threats that have emerged since the law was written, including online predators on social-networking sites like News Corp.'s MySpace, because it targets only commercial Web publishers.

"Even defendant's own study shows that all but the worst performing (software) filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web," said Reed, who presided over a month long trial in the fall.

The law has never been enforced. The U.S. Supreme Court upheld in 2004 a temporary injunction blocking the law from taking effect; Reed on Thursday issued a permanent injunction.

The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age. Penalties include a $50,000 fine and up to six months in prison.

Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union had challenged the law on grounds it would have a chilling effect on speech.

Joan Walsh, Salon.com's editor in chief, said the law could have allowed any of the 93 U.S. attorneys to prosecute the site over photos of naked prisoners at Iraq's Abu Ghraib prison.

"The burden would have been on us to prove that they weren't" harmful to minors, Walsh said.

Daniel Weiss of Focus on the Family Action, a lobbying arm of the conservative Christian group, said it would continue to press Congress for a workable law.

"The judge seems to indicate there's really no way for Congress to pass a good law to protect kids online," Weiss said. "I just think that's not a good response."

To defend the nine-year-old law, government lawyers attacked software filters as burdensome and less effective, even though they have previously defended their use in public schools and libraries. That case was over a 2000 law requiring schools and libraries to use software filters if they receive certain federal funds. The high court upheld that law in 2003.

The plaintiffs expect the Justice Department to appeal. Justice spokesman Charles Miller said the department still was reviewing the decision and has "made no determination as to what the government's next step will be."

"I would hope that Attorney General (Alberto) Gonzales would save the U.S. public's money and not try to further defend what is an unconstitutional statute," said John Morris, a lawyer with the Center for Democracy and Technology. "That money could better be used to help educate kids about Internet safety issues."

The plaintiffs argued that filters work best because they let parents set limits based on their own values and a child's age.

Reed concluded that filters have become highly effective and that the government _ if it wants to protect children _ could do more to promote or subsidize them.

The law addresses material accessed by children under 17, but only applies to sites hosted in the United States.

The Web sites that challenged the law said fear of prosecution might lead them to shut down or move their operations offshore, beyond the reach of U.S. law. They also said the Justice Department could do more to enforce obscenity laws already on the books.

Reed noted in his 83-page ruling that, since 2000, the Justice Department has initiated fewer than 20 prosecutions for obscenity that did not also involve other charges such as child pornography or attempts to have sex with minors.

Although the government argued for the use of credit cards as a screening device, Reed said he saw no evidence of any accurate way to verify the age of Internet users. And he agreed that sites that require a credit card to view certain pages would see a sharp drop-off in users.

The 1998 law followed the Communications Decency Act of 1996, Congress' first attempt to regulate online pornography. The Supreme Court in 1997 deemed key portions of that law unconstitutional because it was too vague and trampled on adults' rights.

COPA narrowed the restrictions to commercial Web sites and defined indecency more specifically.

"This is the second time Congress has tried this, and both times the courts have struck it down," said the ACLU's Chris Hansen, a lead attorney on the case. "I don't see how Congress could write a constitutional statute."


As a professional journalist and photographer, I have spent most of my life in an arena where the protection of the First Amendment is an essential element.
And while politically conservative, maybe even reactionary on some topics, I have always favored the broadest possible interpretation of the First Amendment.
I do not believe the government has the right to tell me what I can see, hear or read or, conversely, say, write or present as an image.
If Congress or state legislatures want to protect children, they should pass laws that encourage parents to exercise control over what their kids see and hear. This is a responsibility of parents, not of government.
The wonderful thing about the Internet is that it is wide open to the expression of every conceivable idea and image. And it is ironic that the U.S. Congress is willing to cross the line into the realm of Internet censorship that is already richly populated by totalitarian regimes like China and North Korea.