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Supreme Court considers second online porn case this term

November 29, 2001

NMU

WASHINGTON, D.C.

Prior Restraints

Nov 29, 2001

Supreme Court considers second online porn case this term

Addressing the Child Online Protection Act, justices pondered whether the law violates the First Amendment by relying on contemporary community standards to determine what is harmful to minors.

The Supreme Court on Wednesday pondered yet another online pornography case this term, trying to determine whether the Child Online Protection Act violates the First Amendment free-speech rights of commercial Web sites that offer pornography or indecent material accessible to minors.

The American Civil Liberties Union, which challenged the law, contended in oral arguments that the law treads upon First Amendment rights, by effectively forcing Web site operators to censor themselves and provide only material on the Internet that adheres to the sensibilities of the nation’s most intolerant community.

The Child Online Protection Act prohibits any commercial Web site operator from making any material deemed “harmful to minors” available to anyone under 17 years of age. Violators could face up to six months in jail and up to $50,000 in fines.

The law “threatens to transform this dynamic medium into a medium fit only for children,” said ACLU staff attorney Ann Beeson.

But Solicitor General Theodore Olson, representing Attorney John Ashcroft and the Bush Administration in defending the law, dismissed the ACLU claim as a “sky is falling” argument. Olson told the court that the law would effectively force Web sites promoting pornography to take some responsibility on the material’s affect on children.

“Congress was saying that those who pollute the stream from which we all drink have some responsibility to reduce the harm,” Olson said.

The case Ashcroft v. ACLU marks the second time in two months that the court has heard oral arguments concerning pornography and indecent materials available on the Internet. Last month, the court began considering a case about a federal law banning computer simulations that make it appear that children are having sex.

Decisions in both cases are expected before the end of the current court term in June.

Congress first attempted to curb indecent material on the Internet with the Communications Decency Act of 1996, which prohibited the transmission of such materials to minors. But a unanimous Supreme Court in the 1997 case Reno v. ACLU struck down provisions of the act as unconstitutional.

While the court agreed that the government held a compelling interest to keep indecent material from children, it ruled that officials had not devised a narrowly tailored measure to do so. Specifically, the court determined that the law’s “contemporary community standards” would subject the Internet to standards of the nation’s most restrictive community and would affect material with considerable value.

Olsen explained to the court that with COPA Congress purposely complied with the court’s concerns by targeting only commercial Web sites and crafting a definition of “harmful to minors” that mirrors language in the court’s decision in Ginsberg v. New York. In Ginsberg, the court in 1968 upheld a New York law that forbade the sale of magazines deemed obscene to minors even though they were not for adults.

Olson, too, noted that the test in COPA includes a prong that says the material “taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.”

A coalition led by the American Civil Liberties Union successfully challenged the law in U.S. District Court for the Eastern District of Pennsylvania. The court granted an injunction prohibiting the enforcement of the law, ruling that COPA, being a content-based regulation of speech, was not the least restrictive means to curb pornography sent to minors over the Internet.

The U.S. Court of Appeals in Philadelphia (3rd Circuit) upheld the district court injunction but determined that the community standards test in COPA was overbroad.

The court hinted that it might agree.

“Aren’t we really talking about an imaginary standard?” Justice Antonin Scalia asked Olson. “What does someone who was raised their entire life in North Carolina know about the community standards of Las Vegas or New York City?”

Justice Stephen Breyer suggested that the court could craft a national standard instead of a community one.

“Could we tell the court of appeals, ‘You were wrong on community standards, no you work out the other issues in the case?” Breyer asked Beeson.

“A national standard would be an exercise in futility,” ACLU lawyer Ann Beeson told the court, claiming that such an objective standard could not be created and not infringe on free-speech rights.

(Ashcroft v. ACLU) — PT

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