Judge Puts Porn Access Burden On Parents

A federal judge on Thursday dealt another blow to government efforts to control Internet pornography, striking down a 1998 U.S. law that makes it a crime for commercial Web site operators to let children access "harmful" material.

In the ruling, the judge said parents can protect their children through software filters and other less restrictive means that do not limit the rights of others to free speech.

Senior U.S. District Judge Lowell Reed Jr. said the law is too broad, snagging and violating First and Fifth Amendment rights, "notwithstanding the compelling interest of Congress in protecting children from sexually explicit material," reports CBS News correspondent Barry Bagnato.

"Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," Reed, who presided over a four-week trial last fall.

The judge said he yearns for a solution to this problem, but added, "I may not turn a blind eye to the law."

"I think the judge gets it that the law would have had a chilling effect on free speech of adults while not really protecting children," says CBSNews.com technology analyst Larry Magid. "This law could have shut down sites that are not only legal, but potentially beneficial, such as sites that promote sexual health."

The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.

"This ruling is just the latest in a long string of judicial defeats for this law and hopefully the decision helps convince Congress and the Justice Department that it needs a fresh, new, legal and practical approach to blocking children from online pornography," says CBSNews.com legal analyst Andrew Cohen. "This ill-fated legislation just doesn't allow technology and the law to synch up and that's why it keeps losing in court."

Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union challenged the law. They argued that the Child Online Protection Act was unconstitutionally vague and would have had a chilling effect on speech.

"The best way to keep kids safe is for parents to closely monitor their Internet activity and teach them, over time, to use the net responsibly," says Magid, who was an expert witness for the ACLU. "Besides, the biggest threat today isn't so much what kids see online but what they say."

The U.S. Supreme Court upheld a temporary injunction in 2004 on grounds the law was likely to be struck down and was perhaps outdated.

Technology experts said parents now have more serious concerns than Web sites with pornography. For instance, the threat of online predators has caused worries among parents whose children use social-networking sites such as News Corp.'s MySpace.

The case sparked a legal firestorm last year when Google challenged a Justice Department subpoena seeking information on what people search for online. Government lawyers had asked Google to turn over 1 million random Web addresses and a week's worth of Google search queries.

A judge sharply limited the scope of the subpoena, which Google had fought on trade secret, not privacy, grounds.

To defend the nine-year-old Child Online Protection Act, government lawyers attacked software filters as burdensome and less effective, even though they have previously defended their use in public schools and libraries.

"It is not reasonable for the government to expect all parents to shoulder the burden to cut off every possible source of adult content for their children, rather than the government's addressing the problem at its source," a government attorney, Peter D. Keisler, argued in a post-trial brief.

Critics of the law argued that filters work best because they let parents set limits based on their own values and their child's age.

The law addressed material accessed by children under 17, but applied only to content hosted in the United States.

The Web sites that challenged the law said fear of prosecution might lead them to shut down or move their operations offshore, beyond the reach of the U.S. law. They also said the Justice Department could do more to enforce obscenity laws already on the books.

The 1998 law followed Congress' unsuccessful 1996 effort to ban online pornography. The Supreme Court in 1997 deemed key portions of that law unconstitutional because it was too vague and trampled on adults' rights.

The newer law narrowed the restrictions to commercial Web sites and defined indecency more specifically.

In 2000, Congress passed a law requiring schools and libraries to use software filters if they receive certain federal funds. The high court upheld that law in 2003.