High Court Ponders Online Porn
The Bush administration's top Supreme Court lawyer sat at his home computer over the weekend and tried a little experiment he says illustrates the need for a law protecting children from online smut.
Type in the words, "free porn" on an Internet search engine, and you get a list of more than 6 million Web sites, Solicitor General Theodore Olson told the Supreme Court on Tuesday.
"I didn't have time to go all the way through those sites," Olson said as the justices and courtroom spectators laughed.
The justices were taking their third crack at the difficult question of how to protect Web-surfing children from smut that adults can legally see and buy.
The justices struck down the first version of a child-protection law passed in 1996, during the Clinton administration, and refused to sign off on a replacement law passed two years later. That law has never taken effect, and is now before the justices for a second time after the court sent it back to lower courts for review.
Internet porn is "persistent and unavoidable," Olson told the court, and government has a strong interest in shielding teenagers and younger children from it.
Free pornography is easy to find online, placed there as a hook to lure paying customers, the Bush administration and its backers argue. Minors can find that free material as easily as adults, although it would be illegal for a store owner to sell them a paper copy of a magazine that shows the same images.
Porn is "as easily available to children as a television remote," Olson told the justices.
Many porn sites try to limit access to adults, with varying success.
The 1998 Child Online Protection Act would make it a crime for commercial Web sites to knowingly place material that is "harmful to minors" within their unrestricted reach.
COPA could mean six months in jail and $50,000 in fines for first-time violators and additional fines for repeat offenders. It is on hold pending court challenges.
The American Civil Liberties Union claims the law violates the First Amendment guarantee of free speech. The ACLU challenged the law on behalf of online bookstores, artists and others, including operators of Web sites that offer explicit how-to sex advice or health information.
The 3rd U.S. Circuit Court of Appeals first ruled the law unconstitutional on grounds that it allowed Internet content to be judged by "contemporary community standards." Given the widespread availability of the Internet, the appellate court said, the law would force every site to abide by the most restrictive community's standards.
In its first look at COPA, the Supreme Court delivered a partial victory to the government by ruling that the community standards issue alone did not make the law unconstitutional.
The justices then sent the case back for a fuller examination of the other free speech objections raised by the ACLU.
The Philadelphia-based federal appeals court then struck down the law a second time, on much broader grounds.
The law was unconstitutional censorship when it was passed and is both unconstitutional and unnecessary now, the ACLU argued in a court filing. It ignores other, potentially effective tools to protect children, such as filtering software, the ACLU said.
"COPA was passed in 1998, when the Internet was still relatively new and less understood," ACLU lawyers argued. "COPA's bludgeon suppresses an enormous amount of speech protected for adults and is unnecessary and ill-tailored to address the government's interest in protecting children from sexually explicit content."
The case is Ashcroft v. ACLU, 03-218.
A search of the term "free porn" on the Yahoo! search engine yields about 19 million sites. But porn is not the only potentially harmful material online: Close to 3 million sites answered to "how to make bombs" and half a million discussed "how to grow marijuana."
Plus, some of the "porn" hits may have been Web sites denouncing pornography rather than selling it. A search engine on the Web site of the conservative Focus on the Family group yields 1,614 hits for "porn."