WASHINGTON -- A judge in Philadelphia yesterday ruled against a 1998 law that makes it a crime for Internet site operators to let anyone under 17 have access to sexual material, rebuffing the government's argument that software filters are ineffective and upholding earlier rulings that the law infringed on free speech rights.
In an 84-page decision, Senior US District Judge Lowell Reed Jr. found that the Child Online Protection Act would not be effective in protecting children from online pornography and that parents can shield their children by using software filters and other less restrictive means that do not curtail adults' rights to free speech.
The case has touched off battles over several major issues, including the government's role in keeping minors safe online and the limits of free speech for commercial websites. Last year, the case sparked another debate after the government tried to subpoena the records of the major Internet search engines so it could do a test to support its argument about filters, raising concerns about individuals' privacy on the Internet.
Government attorneys are reviewing the decision and have not decided whether to appeal, Justice Department spokesman Charles Miller said.
The law was blocked from taking effect in 1998, and a series of courts since then, including the Supreme Court, have upheld the injunction. Reed's ruling was made after a four-week trial in October.
"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 said in issuing the permanent injunction, noting his "personal regret" at having to reject an attempt to protect children from harmful material.
The American Civil Liberties Union, which sued on behalf of a diverse group of website operators, claimed another victory. "The courts have ruled, once again, that speech on the Internet is protected," ACLU executive director Anthony Romero said. In 1997, the Supreme Court ruled in the ACLU's favor in a landmark case protecting speech.
The Child Online Protection Act set fines of up to $50,000 a day and up to six months in prison for anyone who posts online for commercial purposes sexual material "that is harmful to minors." It would have required age verification through a credit card number or other proof of age.
The crux of Reed's argument is that there is no effective way for a website owner to screen out minors and that to avoid risk of criminal penalties the sites would self-censor. Free speech advocates say that could result in a loss of appropriate and valuable content for adults, including information about safe sex or art galleries with modern photography.
"Had the decision gone the other way," ACLU staff attorney Chris Hansen said, "the Web would have had to dumb down. It would have made the entire Web homogeneous and bland so that a 6-year-old could read everything on the Web without anyone objecting."
Supporters of the law called the decision "a tragedy." Marsali Hancock, president of the Internet Keep Safe Coalition, a national group made up of governors, attorneys general, and child advocates, said: "Every family has a challenge to help their children get the best from technology. Today's decision makes that harder. It's a very sad day as far as children and the Internet."
Reed's ruling reflects dramatic changes in the Internet and technology since the law was passed. He found that today a little more than 1 percent of all Web pages are sexually explicit. Of those pages, he said, a "substantial number," about 50 percent, originate overseas. The law would not cover those.
The judge examined in detail the effectiveness of filtering technology, noting that an array of products exist that allow parents to customize blocking patterns to ensure that each child sees only the content the parent wants that child to see. Reed said filters were widely available.