U.S. Judge Blocks Child Online Protection Act

Government efforts to protect children from pornography on the Internet suffered a significant setback Monday when a federal judge in Philadelphia blocked a controversial new law on grounds that it is constitutionally flawed.

The ruling, a preliminary injunction, prevents the government from enforcing the Child Online Protection Act, which requires commercial Web sites to ensure that children do not come into contact with material deemed “harmful to minors.” The injunction supplants an earlier restraining order, which expired Monday.

Civil liberties groups hailed the decision as a signal that they are likely to prevail in their ongoing court battle to get the law overturned as an unconstitutional restraint on free speech.

But the ruling was deeply disappointing to conservative groups and to government officials who have now been rebuffed twice in two years in their efforts to restrict access to pornography on the Web.

Even the judge himself poignantly expressed misgivings about his action. In written remarks, U.S. District Judge Lowell A. Reed Jr. said he reached his decision “despite the court’s personal regret that this preliminary injunction will delay once again the careful protection of our children.”

He acknowledged that many parents would probably be disappointed by the ruling but said, “We do the minors of this country harm if 1st Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”

Many now expect the fate of the law to become mired in a drawn-out court battle. The government attorneys who defended the law have the option of concentrating on an upcoming trial on the law’s constitutionality before the same judge or appealing the ruling, and essentially the entire matter, to the 3rd Circuit Court of Appeals.

Officials at the Justice Department, who were responsible for defending the Child Online Protection Act, would say only that they were reviewing the judge’s decision.

In any case, the ruling is a significant blow to conservative groups and legislators who tried to construct the measure to withstand the constitutional scrutiny that felled the Communications Decency Act of 1996. That law, which made it illegal to distribute indecent material on the Internet, was overturned by the U.S. Supreme Court in 1997.

Reed’s ruling, however, is not the final word on the Child Online Protection Act, which would have set penalties of up to six months in jail and $50,000 per violation. But it does mean that the law won’t be enforced until its constitutionality is determined, and that its backers now face an uphill battle.

“We’re disappointed,” said J. Robert Flores, senior counsel for the National Law Center for Children and Families, a conservative group based in Washington. “Once again, children and families are left entirely on their own to protect themselves from the pornography industry.”

Indeed, sexually explicit content has proliferated wildly on the Internet since the Net’s emergence as a mainstream medium several years ago. And pornography has become one of the deepest concerns among the legions of families that are increasingly driving the Internet’s expansion and growth.

The Child Online Protection Act essentially sought to force Web site operators to put gates around content that is harmful to minors. Commercial sites would have been required to take steps to check the ages of users--either by use of credit cards or electronic passwords--before allowing them to access explicit content.

But critics attacked the law on a number of fronts. And the American Civil Liberties Union led a group of 17 plaintiffs--ranging from operators of sex advice Web sites to media giants such as Warner Bros. Online--who filed suit against the law in October.

The broadest criticism, and the one that appeared to resonate most strongly with the judge, was that the law would undermine the 1st Amendment.

The CDA was struck down largely because it outlawed “indecent” material, a definition the court found irredeemably vague. The Child Online Protection Act sought to remedy that by focusing on content “harmful to minors,” which is the basis of many laws around the country that keep pornographic magazines, for instance, out of the reach of children.

But Reed signaled that even that more narrow standard still posed too great a threat to the free flow of ideas on the Internet. In his remarks, Reed said the Net means that for the first time, “anyone can build a soapbox out of Web pages and speak her mind in the virtual village green to an audience larger and more diverse than any the Framers could have imagined.”

Beyond that, critics said thousands of Web sites would either disappear or be crippled by the onerous financial and logistical requirements of installing the software and systems necessary to uphold the law.

Bruce Speyer, operator of woman’s health site ObGyn.net and a plaintiff in the case, said Monday that traffic at his site would have shrunk significantly if he were required to, in effect, check IDs at the door.

“We want to build a big community and have free flow of ideas,” Speyer said. “But my experience is at least half the people who are prompted to fill out a registration or obtain a password back out.”

Critics also pointed out that the law would have no effect on pornography that originates overseas.

Even the law’s creators have acknowledged it could not be foolproof protection for children. But the authors of the act, headed by Rep. Michael G. Oxley (R-Ohio), argued that it would be a helpful step and on Monday issued a news release urging the government to continue to fight to uphold the law.

But Ann Beeson, an ACLU lawyer who was lead attorney for the plaintiffs in the case, said the ruling bolstered their cause considerably.

“The judge starts out his written decision with the 1st Amendment and ends with it,” Beeson said. “We’re very confident that both the facts and the law are on our side.”