Supreme Court lets online porn filtration law expire

There's a saying that goes, I may not agree with what you say, but I'll fight to the death for the right to keep folks from hearing it. Or something like that. No, the Supreme Court said today, that's not how it goes.

Unconvinced by the argument that begins, "The children, the children!..." the US Supreme Court this morning refused to hear an appeal brought forth by the Bush Justice Dept., of a decision that effectively bars the government from punishing individuals for failing to protect minors from Internet-based pornography.

It had been called the Child Online Protection Act of 1998, and at the time, it had received considerable government support, including from President Clinton who ceremoniously signed it into law. The act, among other things, required Web site operators to use credit cards or adult access codes and personal identification numbers, ostensibly to keep minors from seeing pornography. Violators faced up to six months in prison and fines of up to $50,000 a day. The law was put into place after the Communications Decency Act was itself declared unconstitutional.

The law has never been enforced, as lower courts repeatedly have ruled it unconstitutional. For example, an appeals court in Philadelphia said it was overly broad and too vague, and that filtering technologies and other parental control tools offer a less restrictive way to protect children from inappropriate content online. (Not that those don't have their own problems; such as teens having trouble finding information about homosexuality, or cancer survivors getting blocked from information about breast cancer.)

The law was challenged by the American Civil Liberties Union, booksellers, online magazine publishers and others. ACLU lawyers said the law would have criminalized a large amount of valuable online speech that adults are entitled to communicate and receive.

According to the government's experts in the case, the law could have criminalized not so much the distribution, but the actual the inability to filter as many as 700 million Web pages, though the mechanism for determining who could be charged with violating the law was never really worked out. Proponents of the law argued that it did not block free speech specifically, but rather the inability for others to block inappropriate free speech from being heard.

One recalls Justice Potter Stewart, who said of obscenity, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it."

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