High court remands online porn case to appeals court

From Terry Frieden
CNN Washington Bureau

WASHINGTON (CNN) -- The U.S. Supreme Court ruled
Monday that a law aimed at banning sexually explicit
material available to minors on the Internet is not
unconstitutional simply because it relies on community
standards.

But the justices did not rule on several other aspects
of the Child Online Protection Act, and sent the case
back to an appeals court for further review.

The opinion says the government continues to be barred
from enforcing the law until a Circuit Court rules in
the case.

The law passed by Congress is the second attempt to
shield children from online pornography. The first law
passed in 1996 was declared unconstitutional because
it violated the First Amendments free speech
guarantee.

This time the high court left the question of the
constitutionality of the act unanswered.

In a majority opinion by written Justice Clarence
Thomas, the court said only that the laws reliance on
community standards to identify what material is
harmful to minors does not itself render the statute
substantially overbroad for First Amendment purposes.

Thomas was joined in most portions of the fractured
opinion by Justices William Rehnquist, Sandra Day
OConnor, Antonin Scalia, and Stephen Breyer. Three
justices wrote separate opinions concurring in the
conclusion. Only Justice John Paul Stevens dissented,
saying the law should have been declared
unconstitutional.

The Supreme Court has long held that one test of
whether sexually explicit material may be banned is
whether it violates local community standards. Free
speech advocates have claimed that in the age of the
Internet, when information is available everywhere,
the producers of the material cannot and should not be
required to ensure they do not offend the various
standards of communities across the nation.

The opinion left room for the Third U.S. Circuit Court
of Appeals to find the Child Online Protection Act
(COPA) unconstitutional on other grounds.

The court expresses no view as to whether COPA suffers
from substantial overbreadth for reasons other than
its use of community standards, whether the statute is
unconstitutionally vague. ... Prudence dictates
allowing the Third Circuit to first examine these
difficult issues.

The Justice Department said it was pleased with the
decision.

Congress carefully drafted the law to put Internet
pornography on the same footing as material offered
for sale in bricks-and-mortar bookstores or
convenience stores, where children are protected from
inadvertent viewing because magazines are wrapped in
brown paper or are kept behind the counters, said the
departments chief spokeswoman, Barbara Comstock in a
brief written statement.

As the Child Online Protection Act undergoes further
review, the Justice Department will take all available
steps to support the act and keep our nations children
safe from viewing the pornography for sale on the
Internet.

She made no mention of the limited reach of the
ruling, or the continued hold on enforcing the law.

The case, Ashcroft vs. ACLU, was argued before the
justices November 28.!