Hair of the Dog

In its 5-4 decision on Monday barring prosecutors from enforcing the Child Online Protection Act, the Supreme Court inched somewhat closer to clarifying two problem areas -- pornography and the Internet -- that are vexing enough in themselves and doubly so when joined together.

COPA was passed in 1998, a year in which Congress seemed determined to construct explicit parameters for a society in flux. (Another case in point was that year's Defense of Marriage Act, which attempted to define the institution as exclusively heterosexual.) The Child Online Protection Act made it a crime to publish "any communication for commercial purposes that includes sexual material that is harmful to minors, without restricting access to such material by minors." It defined "harmful to minors" as lacking "scientific, literary, artistic, or political value" and invoked local "community standards." COPA provided a maximum penalty of $50,000, along with six months in prison and additional civil fees.

Predictably, the act faced immediate litigation from the A.C.L.U. and other groups, and it ultimately met with an appeals-court injunction staying enforcement. It was that earlier ruling which the high court met to consider. The majority opinion, written by Justice Anthony Kennedy, was joined in by justices Ruth Bader Ginsberg, John Paul Stevens, David H. Souter, and Clarence Thomas. That's two liberals, two centrists, and an archconservative, and what these justices essentially argued was that, pending a full trial to adjudicate the issues, a filtering system might be preferable to criminal sanctions.

In other words, technology can resolve the issue better than snoops and lawyers. That's an interesting variation on the old "hair-of-the-dog-that-bit-you" remedy. It's a novel idea and worth a try.


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