The measure, which never went into effect, was aimed at shielding children from sexually explicit websites. Judges had repeatedly blocked it on free-speech grounds.
By David G. Savage
8:33 AM PST, January 21, 2009
Reporting from Washington -- A 13-year legal drive to shield children from pornography on the Internet ended in defeat today when the Supreme Court let the Child Online Protection Act die quietly.
The measure, which never went into effect, made it a crime to put sexually explicit material on a website for commercial gain unless the sponsor used some means, such as requiring a credit card, to keep out minors.
It was repeatedly blocked from taking effect on free-speech grounds by judges, including by the Supreme Court in 2004. The justices had also voided an earlier, even broader law passed in 1996 that prohibited "indecency" on the Web.
The outcome preserves the Web as a wide-open forum for free expression. It also leaves to parents the duty to install software filters if they wish to block pornography on their home computers.
The judges in Philadelphia who struck down the law last year called these filters an "equally effective" means of protecting children from pornography on the Web.
In October, however, Bush administration lawyers disputed that claim and urged the high court to revive the law. Voiding the law, "would leave millions of children unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web," they said. About half of all parents do not use filters on their computers, they added.
Countering that contention, the American Civil Liberties Union said the challenged law would crimp free speech on the Web for adults and would not shield children, because at least half of the sexually explicit websites are outside the United States.
Five years ago, the issue split the high court, but not along the usual ideological lines. Voting to block the law on free-speech grounds were Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg. The justices sent the case back to lower courts to decide whether Internet filters would be sufficient to protect minors.
The dissenters were led by Justices Antonin Scalia and Stephen G. Breyer. They were joined by the late Chief Justice William H. Rehnquist and the now-retired Justice Sandra Day O'Connor.
The Supreme Court considered the appeal in two closed-door meetings in recent weeks and said today it had been turned down without comment. The case was Mukasey vs. ACLU.