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Yesterday's Supreme Court vote to block blocking the Child Online Protection Act (COPA) was awfully close, but religious activist groups are wholly united in decrying the decision.

The 5-4 decision did not reject the law entirely, but told a lower court to decide whether the law is the least restrictive way of limiting minors' access to online pornography. "This opinion does not hold that Congress is incapable of enacting any regulation of the Internet designed to prevent minors from gaining access to harmful materials," Justice Anthony Kennedy wrote for the majority. But the majority all but said the lower courts must find COPA—which requires porn sites to require visitors to verify their age—unconstitutional, since it's not the least restrictive way to block minors' access. While the lower court decides the case, the justices said, the law can't be enforced.

"Content-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," Kennedy wrote.

"It is unclear how the government can win the case after yesterday's ruling," writes The Washington Post.

That's Justice Stephen G. Breyer's take, too. "What else was Congress supposed to do?" he asked in his dissent, joined by justices Rehnquist and O'Connor (Scalia wrote a separate dissent). "It is always less restrictive to do nothing than to do something. But 'doing nothing' does not address the problem Congress sought to address—namely that, despite the availability of filtering software, children were still being exposed to harmful material on the Internet."

Well, said Kennedy, "By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties."

Give us a break, says the American Family Association, which offers a fine filter of its own. "In the last Internet porn case (over CIPA, the Children's Internet Protection Act), the ACLU attacked filtering software as clumsy and overprotective," said Stephen Crampton, chief counsel for the AFA Center for Law & Policy. "This time, the ACLU argued that filtering software was much better able to protect children than the mechanism required by COPA. By siding with the ACLU, the Supreme Court has again affirmed that those bent on destroying the family are entitled to more First Amendment protection than those seeking to protect it, such as pro-lifers and street preachers." (The Supreme Court rejected the ACLU's arguments against filters in 2003.)

"Apparently, the majority of justices are unaware that 9 in 10 children between the ages of 8-16 have been exposed to pornography online by aggressive and malicious pornographers," says Focus on the Family analyst Daniel Weiss says the decision.

And that's only going to get worse, says Family Research Council president Tony Perkins. "With spam emails and pop-up ads littering the internet, it is easy to see how a child could unwittingly end up on a pornographic web site. It is not too much to ask that web users who want to access commercial pornographic content prove they are adults."

Perkins added, "It is especially troubling that Justice Clarence Thomas was on the wrong side of this decision."

"This is a devastating defeat for kids, parents and the Constitution," said Jan LaRue, chief counsel for Concerned Women for America. "Minors have no First Amendment right to view this kind of porn and smut-peddlers have no right to expose them to it. If COPA involved cigarettes and kids, the law would have been enforced without the threat of any legal challenges. And anybody who opposed it would have been an ash heap. Remember 'Joe Camel'?"

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June (Web-only) 2004, Vol. 48