Reprinted by permission of The Christian Post
By Katherine T. Phan
Christian Post Reporter
Thu, Jul. 24 2008 11:57 AM EDT
A federal appeals court ruled on Tuesday that a 1998 law intended to protect children from viewing sexually explicit material online was unconstitutional.
The 3rd U.S. Circuit Court of Appeals in Philadelphia overturned the Child Online Protection Act, ruling that the law was overly broad and vague. The court, which days ago tossed a fine imposed against CBS for the 2004 Janet Jackson Super Bowl striptease incident, also ruled that the law violated the First Amendment because it would suppress a large amount of material that adults have a constitutional right to receive.
Tuesday's ruling upholds a March 2007 decision by a lower district court that also found the law unconstitutional.
Steven Fitschen, president of National Legal Foundation, which filed a friend-to-the-court brief in the case, said the founders of the Constitution would be "rolling over in their graves" to learn of the ruling.
"The first amendment is not designed to protect pornography," said Fitschen to The Christian Post. "All of this stuff could be banned and criminalized. They have made such a mess of their interpretation of the First Amendment."
He said that Congress for years has made a sincere effort to protect children from online pornography but have often been set back by courts.
The challenge was filed by American Civil Liberties Union, which is representing gay newspapers, sexual health educators and Salon Media Group, against the federal government.
The Child Online Protection Act, passed by Congress but never enacted, would make it a crime for commercial Internet sites to make pornography available to minors. Under the law, violators would be fined up to $50,000 a day.
Attorneys for ACLU have argued that the law restricts free speech and that online content filters would be a more effective way of controlling offensive content from U.S.-based Web sites and abroad.
The government has countered that filters are not a guarantee because only about 50 percent of households have the service. Furthermore, the government has contended the filters would act as the "belt" keeping minors from accessing harmful material on the Web and COPA would provide additional safeguards as the “suspenders.”
The Justice Department said it is reviewing the case before taking the next step.
"We are disappointed that the court of appeals struck down a congressional statute designed to protect our children from exposure to sexually explicit materials on the Internet," said the U.S. Department of Justice spokesman Charles Miller.
The case could head back up to the Supreme Court for the third time if the federal government appeals. In 2004, the Supreme Court ruled that the law was unconstitutional but sent the case back to a district court to determine whether "technological developments" have affected the law's constitutionality. Justices, however, were locked in a tight 5-4 vote over the issue.
Fitschen believes it's "possible" that the Supreme Court, which is now comprised of a different group of justices, might rule differently if the case reaches them this time around.
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