Online Pornography Ruling - COPA Supporter

(Courtesy Concerned Women For America)

The Supreme Court ruled in a 5 to 4 decision Tuesday that the Child Online Protection Act (COPA) probably violates the First Amendment right to free speech and sent the case back to a lower court.

Jan LaRue, chief counsel for Concerned Women for America and a supporter of the law, and washingtonpost.com reporter David McGuire were online to discuss the ruling.

A transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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David McGuire: Hi Jan, thanks for joining us today. It seems like this issue has come before the court in some form or another almost every year since Congress passed the Communications Decency Act in the late 1990s. Where does this latest ruling leave the issue? What's the next step for your group? And do you think Congress should take another shot at writing legislation to shield kids from sexually explicit material?

Jan LaRue: Hi David:

Thanks for allowing me to join in.

Yesterday's ruling requires the DOJ to go to trial in the district court in Philly and prove that the age verification scheme in COPA is the least restrictive yet effective means of protecting kids from online commercial smut. No matter who wins, it will go back through the 3rd Cir. and then to the Supremes for the third time.

Congress will most likely hold off until the last court-go-round is finished.

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Washington, D.C.: What makes you think the really bad porn sites -- many of which already violate obscenity laws, and operate outside of the reach of U.S. authorities -- will conform to this law? If they're already breaking the law they'll go right on doing it, while law abiding nonprofit organizations that contain useful, but explicit information about domestic violence, or breast cancer, or prison rape would be left having to either censor themselves or face jail time for talking about important public policy matters. Aren't you afraid about what might get caught in this law's wide net?

Jan LaRue: As Justice Breyer said in his dissenting opinion, we shouldn't assume that foreign Web sites won't comply with COPA. But even if they won't, if we get 60 % in this country, we'll do a lot to protect kids.

This law doesn't apply by its own terms to any nonprofits, or to any content provider with material that has serious literary, artistic, political or scientific value.

The definition used has been upheld by the Court and numerous lower federal and state courts for years. Furthermore, if the Supremes had any concerns that it will reach protected material, their job was to construe it so that it couldn't.

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Santa Fe, N.M.: It's my opinion that if we make the world safe for children, adults won't be free. How do you respond to that? Also, it seems to me many parents have begun to reject some of their responsibility of raising their children and have started insisting society do it for them. Could you discuss your opinion on this? Thanks!

Jan LaRue: The First Amendment is not absolute. There's no right to display or distribute the material defined in COPA to minors. COPA does not ban adults from accessing the material. All that's required is age verification before accessing the free porn teaser images. Age verification is commonly used by Web sites, including porn sites. Adults have to identify with a credit card or a check in order to join as members of these sites or to make a purchase.

Parents certainly have a responsibility to protect their kids, but as the Supremes said in 1968, and have reaffirmed countless times, there's a compelling governmental interest in protecting children from porn. Parents have the right to expect the government to aid them in doing that. The best parent can't be with his or her child 24/7.

We don't expect parents to shoulder the burden alone in protecting kids from drug peddlers, tobacco and alcoholic beverage distributors. So they shouldn't have to when it comes to porn either.

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Parkville, Md.: How surprised were you to see Clarence Thomas in the majority opinion in this case? That's one I would never have guessed.

Jan LaRue: Sad to say Justice Thomas has been on the wrong side of porn cases in the past and Justice Breyer has been on the right side more often than not. I predicted that Breyer would be right in this one. I expected Thomas as well because he wrote for the Court on the first go-round in COPA when it ruled that community standards apply in cyberspace.

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Tysons Corner, Va.: Following up on an earlier response, isn't the very definition of "harmful-to-minors" material constitutionally protected speech that could somehow "harm" children. How can courts tailor the law to shield "protected" material, when the law, by its own definition only targets protected material?

Jan LaRue: It's only constitutionally protected for adults. This law is very much like the laws affecting brick and mortar businesses open to kids that carry porn. State laws require store owners to put the material behind a "blinder rack," seal it in cellophane and keep it out of the sight and reach of kids. Young looking adults have to show I.D. to get it.

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Austin, Texas: I own an online gay community with 10,000 members and I'm quite sure that on the surface you'd see me and my business as a prime target for COPA enforcement. In practice, however, I take pains to insure that all members are of legal age, I don't promote my business through any kind of email and beyond member profiles either a paid membership or AVS membership is required to access content. In practice I actually support your efforts. Children have no business on my site and aren't welcome there.

My questions are, do you believe sites like mine for consenting adults have a right to exist? Second, why can't website operators and your organization have a constructive dialog to develop practices and standards on our own? A US law isn't going to affect the most egregious offenders outside the States anyway.

Jan LaRue: I applaud you for having the common sense to know that your material isn't suitable for children. I don't see you or any other online business with material outside the definition of COPA as a target.

COPA is after commercial pornographers who are exploiting kids for the sake of profits. It's not about legitimate health care info or other protected material.

As to foreign Web sites, they aren't exempt from COPA. Anybody who violates U.S. law within the jurisdiction of a U.S. Court can be prosecuted. They can be indicted and arrested when they enter the U.S. In some cases, extradition treaties can be invoked just as the DOJ does in child porn cases.

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Eugene, Ore.: Hi Jan. Your organization, and other conservative organizations, were strong backers of the Children's Internet Protection Act -- the law that requires schools and libraries to install filters. CIPA is based on the premise that filters work -- which anyone who as studied them knows is a false premise. Now the court has asked the Justice Department to prove that filters do not work. What position will your organization take on this issue -- that filters work or that they do not?

Jan LaRue: Oh, contrar. The DOJ commissioned a study on filters in 2002 that clearly shows that several are effective. The Kaiser Foundation issued a very similar report. Filters have improved greatly since COPA was enacted. Our position will be consistent. We recommend that parents, businesses, schools and libraries used server based filters and user based too. But children have access to the Internet is lots of places without filters. That's why the tiny burden should be on the porn sites to use age verification.

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Silver Spring, Md.: Besides the famous: "I know it when I see it" quote do either of you know if any court has been able to define pornography except in the case of community standards? I think this is a real problem when trying to draft and enforce laws related to pornography and obscenity. What really concerns me is my kids seem to have some of their "friends" sending them this stuff by e-mail which gets past our blocking software.

Jan LaRue: Justice Potter Stewart's, "I know it when I see it," is all many seem to know about defining porn. Porn is a generic term that means material that is intended to arouse or gratify the reader viewer or listener.

Obscenity is a legal term of art that refers to porn that is, as the Supremes have said, are descriptions or depictions of "hard-core" sex acts that appeal to an unhealthy, shameful, morbid interest in sex, that are patently offensive depictions or descriptions of sex and lack serious literary, artistic, political or scientific value.

By the way, Stewart in an opinion two years later, gave a list of the kinds depictions of sex acts that could be found obscene.

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Washington, D.C.: Hello Ms. LaRue. It's been almost 6 years since COPA was signed into law and it's nowhere close to being enforced. All the while our kids are exposed to obscene teaser content online. Rather than keep fighting for a law the courts clearly are determined to reject, shouldn't COPA supporters instead turn back to Congress for a new approach?

Jan LaRue: It's not time for Congress to try again. As Justice Breyer said, they did everything to correct in COPA that the Court faulted in the Communications Decency Act in 1997. The DOJ can make the case at trial if the judge is truly impartial.

Also, DOJ needs to step up enforcement of the federal obscenity laws against the big online companies. That will go along way to solve the problem.

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Washington, D.C.: In my opinion, age verification via a credit card over the internet is completely different from age verification via a drivers license in a restaurant or grocery store, or any other retail establishment that sells material requiring age verification. Many opportunities exist for credit card information to be stolen and abused by middlemen or the people doing the age verification. If there was some way to verify ones age with just a name and a drivers license number, for example, I would be a lot less opposed to a law like this one. Do you think there is any possibility something like that could be implemented, or are we stuck with credit cards?

Jan LaRue: Credit cards aren't the only option. COPA allows for any reasonable age verification. There are digital certificates available online to verify age. There are adult access codes, personal I.D. numbers, etc.

Millions are making purchases online using credit card, including at porn sites. A report yesterday indicated that online porn sales are $2.5 billion per year, which makes it all the more reasonable to put the burden on those making the big money and not just on parents.

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Oklahoma City, Okla.: I don't think the Founders could have ever envisioned the ease with which the Internet makes vulgar smut available to children. Do we need a constitutional amendment to make it clear that our freedoms do NOT allow pornographers to prey on our kids?

Jan LaRue: The Founders never intended the First Amendment to protect porn. When the Bill of Rights was ratified, the original colonies all had laws punishing lewd speech, and they remained in force afterward. Thomas Jefferson wrote to John Adams that one of the purposes of the First Amendment is to prevent the federal government from interfering in the right of the states to punish licentious speech.

The modern SC has acknowledged that the FA is intended to protect the dissemination of ideas and political speech.

The tragedy is that this Court majority is granting more protection to speech and upholding the campaign finance reform act that targets political speech.

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Lubbock, Texas: Do you think enforcement of this law, should it pass, might lead to arrests of spam operation leaders as well?

Jan LaRue: COPA doesn't apply to e-mail. Commercial porn spammers can be prosecuted for violating the obscenity laws.

Also, a federal law went into effect in May that prohibits any porn spam that has sexually explicit language in the subject line or includes any sexually explicit photos in the body of the message. The Federal Trade Commission has jurisdiction and has a complaint form online at www.ftc.gov.

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Jackson Hole, Wyo.: Whenever you folks talk about the need for this law, you mention the worst imaginable pornography -- bestiality, child smut and other reprehensible materials. But aren't those already covered under obscenity law? Why should adults have to run through a gamut of privacy-invading age verification procedures, just to see material they could get in an "R" rated movie. Aren't you concerned that you'll trample the rights of adults in your rush to protect kids?

Jan LaRue: C'mon now. If you shop online, you use a credit card. Many commercial sites require signing up for a password. Is it really so burdensome to do so in order to keep this garbage from kids?

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Arlington, Va.: What tipped the scales do you think and lead the majority of the Supreme Court to back a ban on enforcement of COPA? And is it fruitless to try and win this case again, since the High Court has already indicated its preference?

Jan LaRue: The majority failed to do its job as Justice Breyer said. It's the Court's duty to "interpret the Act to save it not destroy it."

They either have forgotten or refuse to apply their own precedent. They give lip service to protecting kids and fail to do so. It sounds very commendable to say things like, "There is a potential for extraordinary harm and a serious chill upon protected speech" if the law takes effect."

But what about the harm to kids and what chill on protected speech? We're seeing an exponential increase of kids committing heinous sex crimes on other kids. When the cops asked where they learned the behavior, they commonly say, "looking at porn."

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Normal, Ill.: Is there a model that exists today that you think would work for restricting minors' access to adult sites? Thank you

Jan LaRue: In addition to COPA, here's one. The smut peddlers could do it on their own if they cared at all about kids. Instead, they're looking to hook the next generation of consumers. All they need to do is put the free teaser images behind an age verification screen just as they do when you want to buy it.

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Eden, N.C.: Requiring age verification is a legal trap. The only way to verify age is either to show up in person and look over 21, or give up some personal, descriptive information that can be used to steal your identity. Does this law essentially say "you can see this creepy stuff if you give up your anonymity?"

Jan LaRue: If these Web sites were selling tobacco, gambling or alcoholic beverages, age verification wouldn't be challenged.

Am I to assume that you never have used a password online or made a purchase with a credit card?

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David McGuire: Unfortunately we're out of time. I'd like to thank Jan LaRue for joining us and our readers for asking so many thoughtful questions.

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