The U.S. Supreme Court heard oral arguments last week over whether a federal law that aims to protect minors from online pornography is a reasonable attempt to rein in a runaway national problem or an unconstitutional infringement of Americans’ right to free speech.
The justices seemed divided over whether Congress made the right move when it enacted the Child Online Protection Act the year after the high court struck down an earlier law intended to address the problem.
The law imposes criminal and civil penalties on operators of commercial Web sites that provide minors access to sexually explicit material deemed harmful to children younger than 17. Web sites can avoid prosecution by requiring users to present proof of age, through such means as credit cards or adult-identification numbers. The American Civil Liberties Union, which challenged the law on behalf of an array of online magazines, booksellers, and others, contends that requiring such identification will drive away viewers, and Justice Ruth Bader Ginsburg picked up on that theme in her questioning last week.
“The whole world can know about it if I give my credit card,” Justice Ginsburg said to Solicitor General Theodore B. Olson, who defended the law during the March 2 arguments in Ashcroft v. American Civil Liberties Union (Case No. 03- 218).
But Justice Stephen G. Breyer said during questioning of ACLU lawyer Ann E. Beeson that requiring Web sites to constrain access to pornography is not unlike using zoning laws to limit adult bookstores or strip clubs to certain areas of town. The effect of such zoning, he said, is to avoid censorship of speech protected by the U.S. Constitution, as long as it takes place in a restricted milieu.
“If that’s not a good solution, what is?” he asked Ms. Beeson.
And Chief Justice William H. Rehnquist suggested that constitutional rights do not necessarily come with privacy guarantees. “If you go buy a gun, you’re not guaranteed anonymity,” he noted.
‘A National Problem’
Ms. Beeson argued that Internet filters installed on home computers do a good job of protecting youngsters from online smut without violating the First Amendment, as she contends the online-protection act does.
“The government can’t burn down the house to roast the pig, especially when there are so many more-effective tools available,” she said.
But Mr. Olson said Internet filters can be easily shut off by tech-savvy teenagers. Web sites offering pornography are “growing exponentially,” he said, adding that he had typed the words “free porn” into a search engine recently and come up with more than 6 million sites.
“Eleven million children visit these porn sites every week,” he said. “This is a national problem. It’s serious. It’s causing irreparable injury to our most important resource: our children.”
Last year, the high court upheld the constitutionality of a related federal law, the Children’s Internet Protection Act, that requires schools and libraries receiving federal E-rate funding to install filters to block out obscenity and child pornography for all users and, for minors, other material that is considered harmful to them. (“High Court Upholds Law on Internet Filtering in Libraries,” July 9, 2003.)
In the current case, Justice Sandra Day O’Connor asked Mr. Olson whether better enforcement of federal anti-obscenity laws might not help address the problem that the Child Online Protection Act targets. He replied that “there may have been some lapses” but that federal prosecutors had been pressing more obscenity cases recently.
This is the second time the high court has considered the Child Online Protection Act. The justices sent the case back to a lower court for further proceedings in 2001. Last March, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously found the law unconstitutional. A decision is expected by July.