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; PlanetOut.com, 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.
