High Court Looks At Online Porn

Congress cannot wall off part of the Internet just because many Americans might think it contains material harmful to children, a lawyer for operators of sexually explicit Web sites argued to the Supreme Court on Wednesday.

There is no such thing as an objective nationwide standard to judge what is damaging for youngsters but might have artistic, educational or other value for adults, said American Civil Liberties Union lawyer Ann Beeson.

"A national standard would be an exercise in futility," she said as the justices examined whether Congress went too far with a 1998 law intended to shield children from online smut.

The court is expected to rule next year on whether it is possible to protect children from explicit Internet content, using what Congress called "community standards," without unconstitutionally limiting the free-speech rights of adults.

The ACLU and its clients, including a Web site operator who dispenses very specific sexual how-to advice to the disabled, claim that community standards would end up meaning the standards of the most conservative community in the country, since material on the Internet could be seen by anyone, wherever they live.

"I would have to worry constantly about material as I publish it," Web site operator Mitch Tepper said. "We would have to self-censor all the time."

"Would it be possible for a North Carolina jury ... to decide whether (online material) would offend the standards of Las Vegas or New York City?" Justice Antonin Scalia asked.

The Child Online Protection Act is on hold pending the ACLU's court challenge. It would make it a crime for commercial operations to knowingly place objectionable material within the unrestricted reach of children on the World Wide Web.

Posting material deemed "harmful to minors" could mean fines and six months behind bars.

The court has already overturned one version of the same law as a violation of the First Amendment right to free speech. The ACLU claims that Congress' second try is no better.

Sexually explicit words and pictures that are deemed indecent but not obscene are protected by the First Amendment.

The Bush administration and backers including Sen. John McCain, R-Ariz., and the conservative Family Research Council claim that the new version of the law provides important protection for children.

"Minors today can search the Web as easily as they can change television channels," Justice Department lawyers wrote in court papers. "Thus, in the privacy of their homes or those of friends, unsupervised minors can, with the click of a mouse, visit one pornographic site after another."

The law would put Internet pornography and other explicit material on the same footing as material offered for sale in bricks-and-mortar bookstores or sex shops, the government argued.

Children are not supposed to see pornography in such establishments, so it comes wrapped in paper or is displayed behind a screen, the government said.

Age retrictions are trickier online, as the court observed in its first ruling striking down a major portion of the 1996 Communications Decency Act.

Filtering software is one option, but even some supporters of that technology say it is not fail-safe. Special access codes or registration systems for adult users are another option, and the one Congress settled on in 1998.

The law requires commercial Web sites to collect a credit card number or an access code as proof of age before allowing Internet users to view online material deemed "harmful to minors."

In an attempt to clear the Supreme Court hurdle, the second law defines indecency much more specifically. It also limits prosecution to commercial material found on the World Wide Web, as opposed to the wider online terrain of e-mail and some chat rooms.

Lower federal courts in Pennsylvania found the law was probably unconstitutional, and blocked its enforcement pending a final court ruling.

The case is the second involving online pornography and children that the court is hearing this fall. A case argued last month tests bans on computer simulations that only appear to depict children having sex.

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