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Supreme Court Watch

June 29, 2004 at 12:00 AM EDT


MARGARET WARNER: The court wrapped up its nine-month term today with two final rulings. In one, the court upheld an injunction blocking, for now, enforcement of a much-litigated federal law designed to keep Internet pornography away from children. And in the second decision, closely watched by the U.S. Business community, the court tackled the issue of whether foreigners can sue in U.S. Courts for alleged human rights abuses. Here to help us sort through the decisions is Marcia Coyle of the National Law Journal. Welcome back, Marcia.

MARCIA COYLE: Thank you.

MARGARET WARNER: The first case, this Internet pornography case, involved a five-year-old law which has never taken effect, which imposed criminal penalties on commercial porn sites if they didn’t take at least some steps, like asking for credit cards which would somehow distinguish between adults and children, to keep children off the sites. After today, that law still won’t be enforced. Explain why. What was the ruling?

MARCIA COYLE: The government was asking the court to overturn the injunction. The Supreme Court, today, in a split decision, 5-4, ruled that the government hadn’t carried its burden of proving that there were no less restrictive alternatives in the court. Justice Kennedy wrote the majority opinion and he said that there were many plausible, less restrictive alternatives to this statute. For example, he suggested filtering software. That was one alternative that, he said, could actually be more effective than a system that Congress had implemented in the statute. He suggested also that the case should go back to the court, the lower courts, for trial on the merits because this case has also been in the courts for more than five years and the Internet has changed dramatically. There may be many more plausible, less restrictive alternatives here and the parties ought to battle that out below.

MARGARET WARNER: Just as a procedural matter, all that happened is that the court upheld the injunction in effect for five years. It didn’t throw the case totally out.

MARCIA COYLE: No, it didn’t. The battle will continue in the lower courts between the government and the American Civil Liberties Union, some artist groups, health care communicators who believe the law violates first amendment.

MARGARET WARNER: Does the opinion written by Justice Kennedy recognize that Congress has a societal interest or right to try to restrict pornographic Web sites, to keep it away from children?

MARCIA COYLE: Yes, he does, and he says that the courts have to be sensitive to that. After all, Congress does make the laws. But this is not the right law yet. There may be less other restrictive alternatives. The court is protective of speech that adults can legally access. If Congress is going to legislate to restrict access by minors, it has to be careful that it does not restrict too much speech that adults have the right to see.

MARGARET WARNER: What was Justice Kennedy’s concern about requiring adult ID number or credit card or some form of identification?

MARCIA COYLE: He said that type of verification system had its flaws that, for example, minors today have credit cards and they could defeat the system that way. He also noted that Congress in this particular statute had created a blue ribbon commission to look at what’s the best way to regulate pornography on the Internet and had concluded that filtering software was more effective than the system that congress created. So he said not only had the government not carried its burden of showing there no were no less restrictive alternatives but a government commission proved just the opposite.

MARGARET WARNER: Four members of the court dissented and the lead dissent was written by, of all people, Justice Breyer, who we usually consider on the left side of the court. What was his defense?

MARCIA COYLE: He was sympathetic to Congress. He said in Congress in 1998, filtering software was the status quo. Congress found that didn’t work, so it took the additional step with the Child Online Protection Act. He said the court has now looked at this three times since 1997. There have been hearings below, decisions, and now the case is being sent back once again for more proceedings. He said what proceedings? If this statute doesn’t pass muster, what will?

MARGARET WARNER: Didn’t he also have a problem with affording huge First Amendment protections to this type of speech?

MARCIA COYLE: He did, in once sense. He felt that the statute did not impose huge burdens on speech or adult access to this type of speech. Justice Scalia wrote separately and he felt this type of speech can be regulated, and that’s it.

MARGARET WARNER: Because it’s obscenity.

MARCIA COYLE: Exactly. There was no First Amendment protection here and Congress can regulate. He wrote a very short dissent to that point. But I think with Justice Breyer, it was that he really didn’t feel this statute went too far in harming adult access.

MARGARET WARNER: We’ll have a lower court trial on filtering – does filtering software work or not, and what do we do about kids who now have the Internet on cell phones?

MARCIA COYLE: That did not come up today.

MARGARET WARNER: To the next case. Now the actual facts of the case that we are going to ignore, but it involved the Mexican doctor who was kidnapped, brought here for trial by some DEA agents, he got acquitted, but now he is suing for the damages. He lost his case. But the court, in this long opinion, kept an important issue alive. Explain that issue and what it said.

MARCIA COYLE: It may be hard to believe that there is a federal law that is over 200 years old that the Supreme Court has not interpreted, but this case gave the Supreme Court its first chance to take a look at a law enacted in 1789 that allows aliens to bring suits in U.S. courts for injuries resulting from violations of international norms. And by an international norm, we mean something that the civilized world agrees is wrong and that is clearly defined.

MARGARET WARNER: So the court… the opinion written by Justice Souter left that door open?

MARCIA COYLE: It did. Justice Souter said that… well, first of all, he rejected the government’s argument that this statute was stillborn at its birth in 1789. He said it had a purpose. In 1789, it allowed suits involving piracy, assaults on ambassadors. The laws have evolved and claims can be brought under this statute. But he cautioned federal courts not to read it too broadly. When an alien brings a suit, it has to be an international norm that’s accepted worldwide and is specifically defined, something like genocide, slavery, summary executions, torture.

MARGARET WARNER: Now the government had complained that if you let all these foreigners bring these suits, it can interfere with U.S. foreign policy. Did Souter deal with that?

MARCIA COYLE: He did. He said the federal courts must be sensitive to foreign policy concerns. For example, he gave a case that is now pending in New York involving South Africa’s apartheid regime. Certain corporations have been sued for their complicity in human rights abuses during that regime. The United States Government has interceded to say this conflicts with our foreign policy. The South African government has said this litigation conflicted with its truth and reconciliation process. He said that’s an example where a federal court has to weigh the foreign policy considerations.

MARGARET WARNER: Now could this ruling also apply to, say, detainees at places like Guantanamo or Abu Ghraib?

MARCIA COYLE: Very interesting. Just yesterday in the court’s Guantanamo Bay decision, Justice Stevens, who wrote for the majority, said these detainees now can not only come into federal government, but they can bring their claims, including claims under this particular statute. So, yes, it may apply to these detainees. As far as the Iraq prison situation, there is already a lawsuit that has been filed in California against the private contractors who provided guards and translators, under this particular statute.

MARGARET WARNER: Marcia, we’ll leave it there. Thank you so much.

MARCIA COYLE: You’re welcome.