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The Supreme Court on Tuesday, for the second time in two years, rebuffed another effort by Congress to restrict minors’ access to adult material on the Internet. In a 5-4 decision issued just before adjourning for the summer, the Court sent the case Ashcroft v. ACLU (II), No. 03-218, back to the federal District Court in Philadelphia for further scrutiny of the “plausible, less restrictive alternatives” to the Child Online Protection Act law, which makes it a crime for commercial Web sites to place adult material on the Internet where it can be viewed by minors. In the meantime, Justice Anthony Kennedy wrote for the majority, the injunction that has halted enforcement of COPA since it was signed into law in 1998 should remain in effect. In a separate ruling Tuesday, the Supreme Court in Sosa v. Alvarez-Machain, No. 03-339, ruled unanimously that neither the Federal Tort Claims Act nor the Alien Tort Statute could by used by a Mexican doctor to recover damages for being kidnapped at the behest of U.S. Drug Enforcement Administration officials in 1990 to face trial in the United States on charges of murdering a DEA agent. The decision could have some bearing on cases expected to be brought by government detainees in Guantanamo Bay. And, in his final words from the bench before summer adjournment, Chief Justice William Rehnquist made unusual remarks in thanking Solicitor General Theodore Olson for “a job well done” in representing the government before the Court. Olson announced June 24 he was leaving after three years in the job. Rehnquist also thanked Court employees, as he does every year, for their service in the term just ended. In the Internet case, the Court, while putting off resolution of the dispute yet again, used language in the decision that was heartening to First Amendment advocates. Kennedy wrote that “[c]ontent-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. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid and that the Government bear the burden of showing their constitutionality.” American Civil Liberties Union lawyer Ann Beeson, who argued against the law before the Court, said Tuesday, “By upholding the order stopping Attorney General [John] Ashcroft from enforcing this questionable federal law, the Court has made it safe for artists, sex educators, and Web publishers to communicate with adults about sexuality without risking jail time.” Justice Department spokesman Mark Corallo voiced disappointment in the ruling. “Congress has repeatedly attempted to address this serious need and the Court yet again opposed these common-sense measures to protect America’s children. The Department will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web,” he said in a statement. The ruling is the latest chapter in the long-running saga of congressional attempts to protect minors from objectionable Internet content. After the Supreme Court in the 1997 case Reno v. ACLU found the Communications Decency Act unconstitutional, Congress tried again to find a way to restrict minors’ access to sexually explicit material on the Internet. The result was COPA, which makes it a crime, knowingly and for commercial purposes, to make any material that is “harmful to minors” accessible to minors. “Harmful to minors” was defined as anything that is either obscene or by community standards appeals to prurient interests, depicts sex acts or genitals, or lacks artistic merit, among other definitions. Before it took effect, the law was found unconstitutional at both the district court and appeals court levels and was enjoined from being enforced. In 2002, the Supreme Court examined the law and returned it to the appeals court for further findings on whether the injunction was justified. In its ruling, Ashcroft v. ACLU (I), the Supreme Court said the use of the “community standards” rule in the law was not overbroad under the First Amendment. In its second look at the law, the 3rd U.S. Circuit Court of Appeals again found the law was not narrowly tailored and was overbroad and therefore unconstitutional. Kennedy wrote that the District Court was acting properly in enjoining enforcement of the law because of its likely First Amendment problems. The ruling zeroed in on only one of these problems — whether less-restrictive means existed to achieve the law’s objectives. “The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished,” Kennedy wrote. Filtering alternatives that are available to parents, Kennedy suggested, are less restrictive than COPA because they “impose selective restrictions at the receiving end, not universal restrictions at the source.” He also cited research indicating filters may be more effective in restricting minors’ access to adult material generated overseas, beyond the reach of the law. But Kennedy also noted such software is “not a perfect solution,” since it sometimes blocks material appropriate for children, while letting through adult material that should be blocked. The government, Kennedy said, has the burden to prove that the alternative is less effective than the law. That can only be tested at the district court level, which can examine the “changed legal landscape” as well as technological innovations since the court last looked at the issue. Justice Stephen Breyer, joined by Rehnquist and Justice Sandra Day O’Connor, dissented. He claimed the law’s scope is “modest” and constitutional. Justice Antonin Scalia also dissented, claiming that the law should not be subjected to higher level “strict scrutiny” but can be justified under lesser standards. ‘SOSA’ RULING COULD IMPACT DETAINEE LITIGATION In the Sosa case, Justice David Souter wrote that Humberto Alvarez-Machain should not benefit from the laws he invoked in suing Sosa and the U.S. government for being abducted and put on trial. He sued after being found not guilty of involvement in the death of DEA agent Enrique Camarena. Souter said neither the Federal Tort Claims Act nor the Alien Tort Statute was intended to cover injuries like those at issue in the case. The ruling could impact the litigation involving the Guantanamo Bay detainees who won access to U.S. courts in Monday’s Supreme Court ruling in Rasul v. Bush. Some of the detainees have invoked the Alien Tort Statute to contest their imprisonment as a violation of international law. Washington Legal Foundation Chief Counsel Richard Samp said, “The decision virtually forecloses the claims, raised by Taliban and al Qaeda detainees at Guantanamo Bay under the [tort statute], that they have been subjected to arbitrary detention in violation of international law.” But advocates for the detainees disputed that assertion, noting that Souter’s opinion appears to leave open the possibility of claims under the law that invoke “the law of nations.” “The Supreme Court sent a clear message today to the Bush administration and multinational corporations that they cannot ignore international human rights law,” said Jennie Green, lawyer for the Center for Constitutional Rights.

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