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The U.S. Supreme Court will revisit the thorny question of how to protect children from online smut without resorting to unconstitutional censorship, reviewing a decision by the 3rd U.S. Circuit Court of Appeals that struck down the Child Online Protection Act, or COPA. Just last term, the justices reversed the 3rd Circuit’s first ruling in the case, saying the single flaw identified by the appellate court was not enough to doom the law. Earlier this year, the 3rd Circuit once again struck the law down, finding that COPA suffers from multiple, incurable flaws. The Bush administration appealed to the high court, arguing that children are “unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web.” Solicitor General Theodore Olson argued that COPA is a reasonable solution to the proliferation of online pornography because the law targets only commercial pornographers. At issue in the case is whether, in the name of children, Congress attempted to restrict too much material that adults have the right to see. On a more practical level, the justices must decide whether the government can require Web sites to employ some form of an adults-only screening system to ensure children cannot see material deemed harmful to them. The American Civil Liberties Union filed the challenge to COPA along with a coalition of plaintiffs representing booksellers, artists, sexually explicit Web sites and others. Senior U.S. District Judge Lowell A. Reed Jr. of the Eastern District of Pennsylvania struck the law down, and a unanimous three-judge panel of the 3rd Circuit upheld that ruling. In its first decision in ACLU v. Ashcroft, the 3rd Circuit held that COPA was flawed because it calls for Internet content to be judged on “community standards” and would therefore “subject Internet providers in even the most tolerant communities to the decency standards of the most puritanical.” The U.S. Supreme Court reversed, finding that the single flaw identified by the 3rd Circuit was not enough to doom the law. Justice Clarence Thomas wrote: “COPA’s reliance on community standards to identify material that is harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment.” In its second ruling, the same three-judge panel of the 3rd Circuit found the law riddled with flaws that render it unconstitutional. Writing for the court, Senior Circuit Judge Leonard I. Garth found that COPA fails the strict scrutiny test because the definitions of key terms and provisions in the statute were not narrowly tailored. “While COPA penalizes publishers for making available improper material for minors, at the same time it impermissibly burdens a wide range of speech and exhibits otherwise protected for adults,” Garth wrote in an opinion joined by 3rd Circuit Judges Theodore A. McKee and Robert E. Cowen. Garth found that the term “minor,” as Congress drafted it in COPA, “applies in a literal sense to an infant, a 5-year old or a person just shy of age 17.” As a result, Garth said, Internet publishers who want to know if their sites will run afoul of COPA “cannot tell which of these ‘minors’ should be considered in deciding the particular content of their Internet postings.” Instead, Garth said, such publishers “must guess at which minor should be considered” when deciding whether the content of their sites has any “serious value” for those minors. Those same publishers, Garth said, would find it difficult to comply with COPA’s “harmful to minors” definition because they “must guess at the potential audience of minors and their ages so that the publishers can refrain from posting material that will trigger the prurient interest, or be patently offensive.” ACLU lawyers argue that COPA could make criminals of many people who use the Internet for legitimate, often health-related reasons. Those who operate Web sites about gynecology and safe sex could be covered, as could Mitch Tepper, who posts explicit how-to sexual advice for disabled people, the ACLU argued in its high court brief. But Olson said the main target is commercial pornographers who use sexually explicit “teasers” to lure customers. The free teasers are available to nearly anyone surfing the Internet, children and adults alike. The pictures sometimes appear even when computer users are not seeking out pornography. The teasers typically lead potential customers to a Web site that may require payment and age verification. COPA could mean six months in jail and $50,000 in fines for first-time violators and additional fines for repeat offenders. It is on hold pending court challenges. The Associated Press contributed to this article.

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