Justices bar curbs on explicit websites

WASHINGTON -- The Supreme Court yesterday blocked the prosecution of operators of pornographic websites that can be viewed by children, suggesting that a landmark law intended to protect minors from sexually explicit materials may be a violation of free speech.

By a 5-4 vote, the Supreme Court sided with the American Civil Liberties Union in saying the law should not be enforced until a lower court decides if it is the least restrictive way to prevent children from viewing pornographic sites.

Passed with great fanfare at the height of the dot-com boom and embroiled in litigation ever since, the Child Online Protection Act of 1998 would force commercial pornographic websites to ask users to prove their age with a credit card number or other identification. The act would impose fines of up to $50,000 a day and six months in jail on website owners who do not verify the age of their users.

The Justice Department, which had sought to enforce the law, expressed frustration with the decision.

"Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped," said Justice Department spokesman Mark Corallo. "Congress has repeatedly attempted to address this serious need and the court yet again opposed these common-sense measures to protect America's children."

But Ann Beeson, who argued the case for the ACLU, said the law would have made it more difficult for anyone to use the websites, and therefore violated the rights of adults. She also said she believes the law's definition of indecent materials went beyond pictures and could extend to written discussions of sex, potentially jeopardizing discussions of social issues.

"This law went far beyond what most of us think of as pornography," she said. "It criminalized words, not just images, and had a definition of prohibited speech that clearly put at risk many artists, sex educators, and mainstream magazines like Salon. Those people, because of today's ruling, are now all safe to communicate about sexuality without facing jail time."

Justice Anthony Kennedy, writing for the majority, said only that any regulation on specific kinds of expression is presumptively unconstitutional under the First Amendment unless the government is able to prove otherwise.

"Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people," wrote Kennedy, referring to laws that impinge on types of expression.

But in his dissent, Justice Stephen Breyer said such concerns were unjustified in this case, noting that the law bans only materials that are both designed to "pander to the prurient interest" of minors and "lack serious literary, artistic, political, or scientific value."

The court sent the case, Ashcroft v. ACLU, back to a district court in Pennsylvania for a full trial over whether the law is really the least restrictive way to protect children from Internet porn.

In 1997, the Supreme Court struck down an earlier attempt by Congress to make the Internet safe for minors called the Communications Decency Act of 1996, holding that there were less intrusive ways to block children from pornography.

In yesterday's decision, Kennedy suggested that a less restrictive way to prevent childrenfrom seeing Internet pornography might be Web browser filters, which parents could choose to install on home computers.

Such programs might also be more effective because the age-verification law would only impact pornographic websites hosted inside the United States, he wrote.

Although 5-4 decisions are common on the Supreme Court, the breakdown was unusual for court-watchers. Justice Clarence Thomas, who usually sides with conservatives, joined Kennedy in the majority, along with more liberal Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg.

Breyer -- who often sides with liberals -- sided with Chief Justice William Rehnquist, and Justices Sandra Day O'Connor and Antonin Scalia in concluding that the law should be enforced.

"What's interesting in this case is Breyer and Thomas," said Jack Balkin, a constitutional law professor at Yale Law School. "Thomas is a quirky fellow and sometimes has First Amendment interests. Pornography may be one of those areas where he's more libertarian. And Breyer is not really a First Amendment libertarian. He likes regulation and thinks that the government can promote regulations for good reasons, and when it does so you should uphold it."

In other action yesterday, the final day of the term, the court declared that only claims that are clearly defined and widely accepted can be brought under the Alien Tort statute. But the majority stopped short of striking down the 1789 law, which gives US courts jurisdiction over suits by foreigners for wrongs committed outside the country "in violation of the law of nations or a treaty of the United States."

The 215-year-old law has recently become a focus of dispute because human rights activists have started using it to sue multinational companies for alleged offenses abroad ranging from complicity in state-sponsored torture to blocking union organizers.

The case, Sosa v. Alvarez-Machain, involved a Mexican doctor who was kidnapped and brought to the United States to face trial for the 1985 torture and murder of a DEA agent. He was later acquitted and sued his kidnapper, a retired Mexican police officer, for arbitary arrest using the Alien Tort statute.

In a fractured and complicated set of opinions, the court majority held that the doctor could not sue his kidnapper because, to qualify for an Alien Tort statute claim, the international norm allegedly violated must be as clearly defined and widely accepted as piracy was in the 18th century. Arbitrary confinement, it ruled, does not rise to that standard.