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Court Strikes Law Aimed at Protecting Children From Internet Porn

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A federal appeals court today struck down a federal law aimed at protecting children from Internet pornography by imposing criminal penalties on commercial Web publishers who fail to restrict access to sexually explicit sites.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously in American Civil Liberties Union v. Mukasey that the Child Online Protection Act violates the First and Fifth Amendments on its face.

The law, enacted in 1998 after the U.S. Supreme Court struck down a broader effort by Congress to protect children from sexually explicit content on the Web, requires commercial Web sites to use age-verification technologies to restrict minors from accessing such materials.

The Supreme Court has addressed COPA in two preliminary cases, Ashcroft v. ACLU and Ashcroft v. ACLU II, which Education Week reported on here and here.

Today's Third Circuit ruling affirms a federal district court that struck down the law after a full trial.

"We are quite certain that notwithstanding Congress’s laudable purpose in enacting COPA, the Government has not met its burden of showing that it is narrowly tailored so as to
survive a strict scrutiny analysis and thereby permit us to hold it to be constitutional," the appeals court said. It said that the government's promotion of content-filtering software would be a less-restrictive alternative that COPA.

Meanwhile, COPA should not be confused with the Children's Internet Protection Act, or CIPA, a similar law that has more direct bearing on schools' efforts to protect children from inappropriate Web content.

CIPA requires recipients of federal technology funds, such as E-rate discounts for telecommunications, to adopt Internet-safety policies that include the installation of filtering software to block out obscenity, child pornography, and other material that is "harmful to minors."

In 2003, in United States v. American Library Association, the Supreme Court upheld CIPA in a challenge to its application to public libraries that receive federal technology funds. Education Week reported on that ruling here.

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Most likely, conservatives will be up in arms over this issue. However, where does it become unreasonable for the government to expect Internet providers and other techy companies to protection children all over America? How far are these companies expected to go?

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