IT Infrastructure

High Court Hears Arguments In Internet Pornography Case

By Mark Walsh — December 05, 2001 3 min read
  • Save to favorites
  • Print

Arguing that Internet pornography is “readily accessible to children,” the Bush administration urged the U.S. Supreme Court last week to uphold a federal law designed to protect minors from sexually explicit material on the World Wide Web.

“As long as they can type and read, [children] can find it, and they find it by accident,” Solicitor General Theodore B. Olson told the justices.

But an American Civil Liberties Union lawyer argued that in adopting the Child Online Protection Act in 1998, Congress once again failed to come up with a constitutional method of regulating sexually explicit material on the Web.

Under the law’s requirement that “contemporary community standards” be used to judge whether material is harmful to minors, “the least tolerant community would get to set the standards for the Web,” ACLU lawyer Ann E. Beeson told the justices during the Nov. 28 oral arguments in Ashcroft v. American Civil Liberties Union (Case No. 00-1293).

In 1997, the high court struck down key provisions of the Communications Decency Act, the first effort by Congress to regulate indecent material on the Internet. The decision in Reno v. American Civil Liberties Union was unanimous in most respects, with a suggestion from the court’s opinions that a law that did not sweep as broadly as that one might pass constitutional muster.

With the Child Online Protection Act, Congress targeted its efforts at commercial pornographers, especially those that offer “teasers” giving Web surfers a glimpse of the sexually explicit material available beyond a wall requiring credit-card payments or other adult verification.

The law was immediately challenged by the ACLU and a coalition of Web businesses that are not primarily engaged in displaying pornography but that feared they could face prosecution. Those include the online magazine Salon;, a Web site for the gay community; Condomania, an online seller of condoms and other “safe sex” materials; and others.

Both a federal district court in Philadelphia and the U.S. Court of Appeals for the 3rd Circuit, also in Philadelphia, blocked the law from taking effect, ruling that it was likely a violation of the First Amendment’s guarantee of free speech.

The appeals court based its ruling on the statute’s reliance on community standards for determining whether commercial material on the Web was harmful to minors. That issue was central during the arguments last week before the Supreme Court.

‘Las Vegas’ Standard?

Several justices asked the lawyers whether the law, despite its adoption of a community-standards test from the court’s own obscenity cases of the 1970’s, would really create more of a national standard for evaluating whether Web material was harmful to minors.

Some justices appeared to be trying to salvage the law by narrowing its construction to the idea of a national standard, and Mr. Olson embraced the idea.

“We’re now in an era of national television and national media,” the solicitor general said. “We’re talking about the Internet reaching millions and millions of households.”

Nevertheless, he said, jurors evaluating a case under the law would draw on their own experiences, “which necessarily come from their own community.”

Justice Antonin Scalia asked whether that meant a North Carolina jury evaluating “a pornographic transmission” would have to “apply the standards of Las Vegas.”

Ms. Beeson of the ACLU was adamant in arguing that construing a national standard for what is harmful to minors into the law would not save it from unconstitutionality.

“This statute has a very strong deterrent effect” on speech that is unquestionably legal for adults to receive, she said.

She said that a Congressional commission had found that the most effective way to keep sexually explicit Web material away from children was for parents to use so-called filtering software.

Justice Scalia responded that Congress could not dictate that parents install filters. Moreover, Mr. Olson argued during his rebuttal, the government has an independent interest in protecting children from pornography regardless of the actions or attitudes of parents.

Justice John Paul Stevens, who wrote the opinion striking down the Communications Decency Act, appeared more sympathetic this time around to Congress’ goal of keeping sexually explicit material away from children.

“There is a genuine problem that Congress is trying to address,” he told Ms. Beeson.

The case should be decided by next June.

Related Tags:

A version of this article appeared in the December 05, 2001 edition of Education Week as High Court Hears Arguments In Internet Pornography Case


Classroom Technology Webinar How Pandemic Tech Is (and Is Not) Transforming K-12 Schools
The COVID-19 pandemic—and the resulting rise in virtual learning and big investments in digital learning tools— helped educators propel their technology skills to the next level. Teachers have become more adept at using learning management
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Student Well-Being Webinar
Building Teacher Capacity for Social-Emotional Learning
Set goals that support adult well-being and social-emotional learning: register today!

Content provided by Panorama
Jobs October 2021 Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

IT Infrastructure School Districts Seek Billions in New Federal Money for Connectivity, FCC Announces
The Federal Communications Commission received $5.1 billion in requests for new funding to purchase devices and improve internet access.
2 min read
Image shows two children ages 5 to 7 years old and a teacher, an African-American woman, holding a digital tablet up, showing it to the girl sitting next to her. They are all wearing masks, back to school during the COVID-19 pandemic, trying to prevent the spread of coronavirus.
iStock/Getty Images Plus
IT Infrastructure School District Data Systems Are Messed Up. A New Coalition Wants to Help
Organizations representing states and school districts have teamed up with ISTE to help make data systems more user-friendly and secure.
3 min read
Conceptual collage of arrows, icon figures, and locks
Sean Gladwell/Moment/Getty
IT Infrastructure More Families Have Internet Access. So Why Hasn't the Digital Divide Begun to Close?
A new study says low-income families’ access to the internet has soared in the past six years. But there are other barriers to connectivity.
3 min read
Glowing neon Loading icon isolated on brick wall background. Progress bar icon.
Mingirov/iStock/Getty Images Plus
IT Infrastructure Remote and Hybrid Learning Are Declining. But the 'Homework Gap' Will Still Be a Problem
Schools are returning to in-person instruction, but students' connections to the internet at home remain spotty.
2 min read
Sam Urban Wittrock, left, an advance placement World History Teacher at W.W. Samuell High School, displays a wifi hot spot that are being handed out to students in Dallas on April 9, 2020. Dallas I.S.D. is handing out the devices along with wifi hotspots to students in need so that they can connect online for their continued education amid the COVID-19 health crisis.
Sam Urban Wittrock, left, an Advanced Placement World History Teacher at W.W. Samuell High School in Dallas, displays one of the Wi-Fi hotspots that were given to district students during the pandemic.
Tony Gutierrez/AP