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Online-Porn Act Unenforceable - Broadcasting & Cable

Online-Porn Act Unenforceable

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In a close decision, the Supreme Court ruled 5-4 that the Child Online Protection Act should not be enforced pending a trial on its constitutionality.

Congress passed the act after the high court threw out the Communications Decency Act of 1996, Congress' first attempt to regulate indecent online speech in the name of protecting children.

The Court of Appeals had upheld a District Court ruling that COPA likely violates the First Amendment and should not be enforced. The Justice Department appealed.
The Supreme Court agreed with the district court, affirming the injunction and remanding the case back to the district court for trial.

Citing the Playboy case, the majority--Justice Anthony Kennedy wrote the opinion--held that since COPA was a content-based restriction enforced by severe criminal penalties, it must be presumed invalid until the government can prove it is the least restrictive means to its compelling government interest.

The court cited three practical reasons for upholding the injunction: 1) The harm of reversing the injunction outweighs that of leaving it in place; 2) there remains a serious question of whether filtering software is more or less effective than the law; 3) the district court factfinding dates from 1999 but the technology has not stood still, prompting the High Court to say that, “it is reasonable to assume that...technological developments important to the First Amendment analysis have...occurred during that time.”

The court did not challenge the government's interest in protecting children, but said the government had failed to show that blocking or filtering devices were not plausible, less restrictive alternatives to COPA, which carried a $50,000 fine and six months in prison for any commercial entity posting content that is "harmful to minors."

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