The Supreme Court has once again decided Congress has yet to find a way to keep kids safe from pornography on the Web without stepping on free-speech rights.
In a close 5-to-4 decision on Tuesday, the court didn't exactly say that the 1998 Child Online Protection Act was unconstitutional, as it did a 1996 version of the law. Instead, it asked a district judge to hold a trial to allow the Bush administration to make a case that the law is necessary because the main alternative, software filters that try to block Web porn, are not effective enough.
The court's majority admits that such filters aren't perfect, but claims they are less restrictive than the law's potential of jailing people whose websites deal with sex but aren't pornographic. It didn't want to rule on the free-speech issue until a lower court had reviewed the latest advances in filters.
Filters "impose selective restrictions on speech at the receiving end, not universal restrictions at the source," Justice Anthony Kennedy wrote for the majority.
Parents who want more help than filters now provide must be frustrated. As dissenting Justice Stephen Breyer noted, after eight years of legislative effort, two statutes, and three Supreme Court cases, the case now goes back for another hearing.
Tuesday's ruling went so far as to suggest Congress "act to encourage" filters for parents. That would be a multibillion-dollar program, and runs the risk of some federal controls over people's home computers. That might put an even greater chill on free speech than the Child Online Protection Act.
The law's main weakness is that it can't reach the estimated 40 percent of porn sites that are based in other countries. So filters are needed. The question then is: Are filters enough?
Probably not. In the cat-and-mouse game between software developers and porn sites, filter technology will always be catching up. Parents will always need to be on guard, and guide their kids' use of computers.
Congress did its level best to write a law that could be the least restrictive in impinging on free speech, while addressing a compelling public need to protect children. "Properly interpreted," Justice Breyer wrote, the law "imposes a burden on protected speech that is no more than modest."
The courts, Congress, and parents must all help keep Web porn in a tight box. Free speech should not mean sex shows for 10-year-olds.