Unhindered free speech remains the rule on the Internet, the Supreme Court said Tuesday, as it barred prosecutors from enforcing a federal law that would make it a crime for commercial websites to post sexually explicit material where children and teenagers could see it.
The 5-4 ruling sends a message to parents that it is up to them to monitor their family computer and, if necessary, install software filters to screen out pornography. The court also said the free-speech rights of adult users of the Internet should not be sacrificed if there were more effective ways to protect children.
Software filters look to be a more effective way to shield minors from online pornography because they target the problem in the home, said Justice Anthony M. Kennedy.
This is preferable to permitting the government to go after websites whose customers are adults, Kennedy said. Moreover, since an estimated 40% of the pornography on the Internet comes from overseas, a federal law targeting U.S. producers would not truly shield America’s children, he said.
Tuesday’s ruling in Ashcroft vs. the American Civil Liberties Union upheld a judge’s order that had kept the government from enforcing the Child Online Protection Act of 1998. It would impose a $50,000 fine and six months in prison for the operator of a commercial website that posted “patently offensive” photos or descriptions that were available to minors.
Under the law, website operators could defend themselves by requiring a credit card number or an adult access number to enter the site.
The justices stopped short of declaring the law unconstitutional. Instead, they sent the case back to a court in Philadelphia for a trial to decide whether software filters would work as well as a criminal law in shielding children from online pornography.
“By preventing Atty. Gen. [John] Ashcroft from enforcing this questionable federal law, the court has made it safe for artists, sex educators and Web publishers to communicate with adults about sexuality without risking jail time,” said Ann Beeson, the ACLU’s associate legal director.
Mark Corallo, a Justice Department spokesman, said in a statement, “The Department will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web.”
Tuesday’s ruling came on the last day of the term.
During the oral argument in early March, justices sounded as though they agreed with U.S. Solicitor Gen. Theodore B. Olson, who described the law as a reasonable means for shielding inquisitive minors from Internet pornography.
But that was not enough to convince a majority. The justices have repeatedly been wary of allowing the government to censor speech based on its content.
Kennedy’s opinion in Tuesday’s ruling was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Clarence Thomas.
Thomas joined with liberals in casting a deciding vote to block enforcement of the law, and some conservative activists criticized him for it.
While the government said the law was aimed at commercial pornographers, ACLU lawyers said it went much further. They said it would threaten the websites for art galleries, bookstores and sexual advice columnists.
One of the ACLU’s plaintiffs, Dr. Mitch Tepper, runs a website that posts sexual advice for people with disabilities. “I am relieved that I no longer have to worry that Atty. Gen. Ashcroft may come knocking at my door because someone may consider my website harmful to minors,” he said.
Conservative activists said they were disappointed.
“Today’s decision is yet another victory at the high court for pornographers, at the expense of America’s children,” said Pat Trueman of the Family Research Council. “It is not too much to ask that Web users who want to access commercial pornographic content prove they are adults. We are especially disappointed that Justice Clarence Thomas was on the wrong side of this decision.”
Thomas, like Kennedy, usually votes with conservatives such as Justice Antonin Scalia, but they have disagreed repeatedly on whether sexually explicit material was entitled to the full protections of the 1st Amendment.
Thomas and Kennedy say the free-speech guarantees of the 1st Amendment cast doubt on any laws that censor speech, including writing and photos involving sex. Scalia disagrees, and says less protection is due material that focuses on sex.
“Nothing in the 1st Amendment entitles the type of material covered by the [1998 law] to that exacting standard of review,” Scalia wrote in a separate dissent. He added that “commercial entities which engage in the sordid business of pandering ... engage in constitutionally unprotected behavior.”
Despite years of effort, Congress and the federal government have been unable to enforce an Internet pornography law.
Seven years ago, the Supreme Court struck down the Communications Decency Act, a broadly worded law that made it a crime to transmit “indecent” messages over the Internet. The law could have been read to make it a crime for friends to send each other off-color jokes by e-mail.
In response, Congress passed the narrower measure that was at issue in Tuesday’s decision. It was limited to commercial websites, and it covered only sexually explicit material that was judged “patently offensive” by contemporary community standards.
Nonetheless, Kennedy said the 1st Amendment usually did not allow the government to censor material because of its content. The law can stand, he said, only if the government proves that there are no other ways to protect children from Internet pornography. And so far that has not been proved, he concluded.
Justice Stephen G. Breyer wrote the lead dissent. He said the law Congress wrote in 1998 effectively focused on the problem of children having access to pornography, and it should be upheld. He was joined by Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor.