Porn Law Before Court

Justices Asked to Uphold Child Online Protection Act

The Bush administration's top lawyer asked the Supreme Court yesterday to end a five-year legal battle that has prevented enforcement of a federal law designed to keep Internet pornography away from minors.

Solicitor General Theodore B. Olson told the justices that the restrictions on sexually oriented Web sites imposed by the Child Online Protection Act (COPA), which was passed by Congress and signed by President Bill Clinton in 1998, do not violate free speech.

COPA, which imposes criminal sanctions on commercial Web sites that fail to make a good-faith effort to block access to sexual material that is "harmful" to people younger than 17, is needed to deal with the "menace" of "pervasive and essentially unavoidable Internet pornography that inflicts substantial physical and psychological damage on children," Olson said yesterday during oral arguments in the case.

This is the third time that the court has addressed the question of what Congress may do to limit children's exposure to pornography on the Internet. In 1997, the court struck down a broader law, the 1996 Communications Decency Act (CDA), as a violation of the First Amendment. COPA attempted to fix the CDA's constitutional defects, but it, too, was found unconstitutional in 2000 by the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit.

In 2002, a sharply divided Supreme Court told the 3rd Circuit to redo its decision; last year, the 3rd Circuit struck down the law again, based on a different legal argument, and the Bush administration appealed the case once again to the Supreme Court.

"This statute was constructed according to this court's guidance . . . to deal with a serious national problem," Olson said yesterday.

But to the law's opponents, who are represented in the case by the American Civil Liberties Union, the history of the CDA and COPA simply shows the futility of legislation to restrict access to sexual material on the vast and ever-changing Web. However well intentioned, COPA's provisions aimed at children inevitably limit Web publishers' freedom to communicate with adults, and that is unconstitutional, opponents say.

"The government has a range of more effective and less intrusive tools to meet the same objective," ACLU lawyer Ann E. Beeson told the court yesterday. She cited the law's potentially chilling effect on such non-pornographic Web sites as one dedicated to discussion of the television series "Sex and the City."

The court seemed torn between some justices' lingering concerns about Internet censorship and others' desire not to strip Congress of power to legislate in an area that worries many constituents.

Both sides agree that the bottom-line issue is who must bear the burden of policing children's access to Web pornography -- Web site operators and their clientele, or individual parents.

Justice Sandra Day O'Connor seemed to lean the ACLU's way, noting in a question to Olson that "part of the problem is that [other] pornography laws that would apply to adult viewers don't seem to be enforced very well."

Justice Ruth Bader Ginsburg suggested that adults' privacy might be threatened by the law's requirement that Web sites screen out children by asking for credit card information as a condition for access.

And Justice Anthony M. Kennedy thought the law "very sweeping" because it targets entire Web sites rather than individual Web pages that may contain sexual material.

But Justice Stephen G. Breyer seemed sympathetic to COPA, as did Chief Justice William H. Rehnquist and Justice Antonin Scalia.

Breyer said that his concern was "the millions of families where no parent is home during the day" and who might need government help to block out pornography.

When Beeson suggested that the answer might be tougher enforcement of existing obscenity laws, Breyer said that, too, raised free-speech problems.

"Isn't it preferable to lean in the direction of letting adults see anything, with a burden attached?" Breyer asked. "When you say launch a crusade against obscenity, isn't it worse from a First Amendment point of view?"

Justice John Paul Stevens seemed to doubt that COPA's rules for screening out children would unduly interfere with adult Web users, noting that the law contains provisions barring the misuse of credit card information or other personal data. Millions of online shoppers supply their credit card numbers each day, he said, "and they aren't concerned about it."

Beeson responded that there is a difference between offering a credit card to buy something and doing so to gain access to Web content.

The case is Ashcroft v. ACLU, No. 03-218. A decision is expected by July.