(COMTEX) B: Court rules against porn law, kidnap suit ( United Press International )
WASHINGTON, Jun 29, 2004 (United Press International via COMTEX) -- The Supreme Court took significant steps Tuesday in two different areas of the law: It kept the government from implementing the Child Online Protection Act; and, in a case with implications for the war on terror, it ruled that a Mexican doctor abducted on behalf of U.S. agents could not sue the United States.
The Child Online Protection Act, or COPA, was designed to protect minors from accessing sexually explicit material placed on the Internet for "commercial purposes." Conviction of COPA violations could carry up to a $50,000 fine and six months in jail.
The law forced adult Web sites to require the use of a credit card, some other adult identification number or some similar unspecified technology for access to material that is "harmful to minors."
In fact, the law was enacted in response to a 1996 Supreme Court decision striking down parts of the Communications Decency Act.
The American Civil Liberties Union and others filed a First Amendment suit against COPA, saying it was not the least restrictive method of protecting children from harmful material.
The legal history of the law has had its ups and downs. A federal judge in Philadelphia granted a preliminary injunction against COPA's implementation, primarily because of the "least restrictive" argument.
A federal appeals court upheld the injunction, pending a trial on the merits, and concluded that the law's evaluation of material based on "community standards" was unconstitutionally overbroad. The Supreme Court reversed, saying that the "community standards" issue alone did not make the law
unconstitutional.
When the case went back down for a rehearing, the appeals court again upheld the judge's injunction, saying that the law was not narrowly tailored to serve a compelling government interest, was overbroad and was not the least restrictive means available for keeping Internet pornography from minors.
Writing for a 5-4 majority, Justice Anthony Kennedy said Tuesday, "Content-based prohibitions enforced by severe criminal penalties have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat, the Constitution demands that content-based restrictions on speech be presumed invalid (by the courts) ... and that the government bear the burden of showing their constitutionality."
Kennedy said the government "has failed, at this point, to rebut the (challengers') contention that there are plausible, less restrictive alternatives to the statute. Substantial practical considerations, furthermore, argue in favor of upholding the injunction and allowing the case to proceed to trial."
Kennedy's opinion upholds the lower-court ruling.
The moderate Kennedy was joined in the narrow majority by liberal Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg, and by Justice Clarence Thomas, the court's most conservative member and a champion of the First Amendment.
Conservative Justice Antonin Scalia dissented, saying pornography on the Internet for "commercial purposes" could be banned entirely under the Constitution, and therefore lesser restrictions would also be constitutional.
Liberal Justice Stephen Breyer dissented, joined by conservative Chief Justice William Rehnquist and moderate Justice Sandra Day O'Connor. Breyer said, "I cannot accept (the majority's) conclusion that Congress could have accomplished its statutory objective -- protecting children from commercial pornography on the Internet -- in other, less restrictive ways."
In the second case decided by the justices Tuesday, Dr. Humberto Alvarez-Machain was seized in Mexico by Mexican nationals acting on behalf of the United States.
Though the ruling in the case was confined to the facts surrounding the Alvarez-Machain abduction, its principles could be applied to any case in which U.S. agents cause the adduction of a foreign suspect because of alleged crimes against the United States committed abroad.
In February 1985 Drug Enforcement Administration special agent Enrique Camarena-Salazar was kidnapped by members of a Mexican drug cartel and brought to a house in Guadalajara. There he was tortured for two days to extract information, then murdered and buried in a public park.
Alvarez was suspected of helping to keep Camarena-Salazar alive during the torture, and a federal judge issued a warrant for his arrest in 1990, but attempts to have Mexican officials bring the doctor to the United States were unsuccessful.
The DEA then approved the use of Mexican nationals to snatch Alvarez-Machain in Mexico and bring him to the United States, where he was taken into custody by U.S. law enforcement.
Lawyers for the Mexican doctor asked for a dismissal of the case against him, saying his kidnapping was illegal under international law and a treaty between Mexico and the United States.
A federal judge and a federal appeals court agreed, but the Supreme Court reversed, ruling that the abduction was not in violation of the U.S.-Mexican extradition treaty, and further ruling that Alvarez-Machain could be held in the United States, even if his seizure violated international law.
The Supreme Court sent the case back down for trial. This time a federal judge again granted the doctor's request for a judgment of acquittal.
After Alvarez-Machain returned to Mexico, his lawyers filed suit in federal court in Los Angeles against the United States, U.S. officials and seven Mexican nationals for false arrest and imprisonment. A federal judge rejected claims of torture, saying they were not credible.
Alvarez-Machain's suit was filed under the Federal Tort Claims Act, which says "the United States shall be liable (for claims of wrongdoing) in the same manner and to the same extent as a private individual under like circumstances."
There are several exceptions, however, including a "claim arising in a foreign country."
Eventually, a federal judge ruled that the Federal Tort Claims Act applied because the warrant was issued in the United States. However, the judge granted a U.S. request for a summary judgment, ruling that Alvarez-Machain had failed to establish a false-claim arrest under federal law.
A federal appeals court panel then reversed the judge. The panel agreed that there was probable cause to arrest Alvarez-Machain but said the DEA agents did not have the authority to enforce U.S. laws abroad, saying that reinforced the image of "American imperialism."
When the full U.S. Court of Appeals for the 9th Circuit, by a vote of 6-5, also ruled for Alvarez-Machain, the Justice Department asked the Supreme Court for review.
Tuesday, the Supreme Court reversed the appeals court.
Justice David Souter, writing for the court, said, "The two issues are whether ... Alvarez-Machain's allegation that the Drug Enforcement Administration instigated his abduction from Mexico for criminal trial in the United States supports a claim against the government under the Federal Torts Claims Act ... and whether he may recover (damages) under the Alien Tort Statute. ... We hold that he is not entitled to a remedy under either statute."
Souter said the Federal Tort Claim Act bars claims based on any injury suffered in a foreign country, regardless of where the wrongful act causing the injury occurred.
As for the Alien Tort Statute, Souter said, the 1789 law mainly is concerned with offenses against ambassadors, violation of safe conducts and piracy.
All of the rest of the justices signed on to the major parts of Souter's opinion. There were no dissents.
(No. 03-218, Ashcroft vs. ACLU et al; and No. 03-339, Sosa vs. Alvarez-Machain)
--
(Please send comments to nationaldesk@upi.com.)
By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent
Copyright 2004 by United Press International.
-0-
*** end of story ***
