Web porn, minors, and free speech
Six years ago, Congress passed the Child Online Protection Act to shield children from an explosion of sexually explicit material on the Internet.
Some website operators, seeking to attract new customers to pornographic sites, were creating hard-core "teasers" and linking them to common search terms. For example, an Internet search of "toys" turns up a lot more than just Frisbees and hula hoops.
Lawmakers sought to hold Internet pornographers responsible for material that might be viewed by minors. But the law has never been enforced. A federal judge imposed an injunction shortly after the measure was signed into law.
Tuesday, the debate arrives at the US Supreme Court where the justices must determine whether the law is an acceptable regulation of adult commercial activities that threaten the well-being of children, or an overly broad effort that muzzles the free-speech rights of adults.
In broader terms, the case is important to the future development of the Internet because it could set ground rules for government regulation of the Web.
"There is a compelling governmental interest in protecting minors from the effects of material that is not obscene by adult standards, but that is nonetheless harmful to minors," says US Solicitor General Theodore Olson in his brief to the court. "Thousands of web businesses display numerous free pornographic depictions that are harmful to minors, and that material is readily accessible to minors of all ages."
Ann Beeson of the American Civil Liberties Union has made a career out of challenging the law. She says the Child Online Protection Act, or COPA, tries to accomplish too much. "You can't restrict adult viewing habits to protect kids. That is what this law does, and we think it violates the Constitution," says Ms. Beeson, who is arguing the ACLU's case before the court.
"It is one thing to make it a crime to deliberately give [pornography] to a minor, that is not a problem," Beeson says. "But what the government can't do is make it a crime to provide that material to an adult."
COPA puts pornographic Web operators on notice that they can be sent to jail and/or fined if they don't take special precautions to prevent minors from accessing adult material on their websites. In effect, Web operators would have to set up a special screening page to prevent underage visitors from viewing any adult content. To get beyond the screen, older visitors would have to prove their age by offering a credit-card number or adult identification number.
"Congress has said this is part of the cost of doing business. You have to ensure that children will not view this," says Jay Sekulow of the American Center for Law and Justice, which filed a friend-of-the-court brief in the case. "I don't think they are putting anything more on someone selling obscenity or porn than someone selling tickets online to an event."
Beeson of the ACLU disagrees. She says adults have a constitutional right to access adult material on the Internet. Requiring them to go through a screening process violates that right.
"Screens drive away users," she says. "Users don't want to give their credit card [numbers] in order to see material that is meant to be seen for free on the Web."
Beeson says there are more effective ways to protect minors from Internet pornography that don't violate the rights of adults. Internet filters selected by parents is an option, she says. In addition, the government could help create a safe kids domain on the Internet.
Carol Clancy of the National Law Center for Children and Families says that rather than creating a safe zone for children, the entire Internet should be safe. Restrictive zones should be established for adult material accessible to adults only.
"There are so many parents who are trying to find some way to protect their children from the effects of pornographic imagery," Ms. Clancy says. "It is impractical to say that parents must sit beside them when their children use the Internet."
Just as adult bookstores are prohibited from selling - or even displaying - their wares in places that might be frequented by children, so, too, should Web-based adult bookstores be similarly regulated, supporters of the law say.
This isn't the first time the Supreme Court has considered the issue of Internet pornography and children. In 1997, the high court struck down the Communications Decency Act of 1996, saying that while the government has a compelling interest in protecting children from indecent material on the Internet, the act was not narrowly tailored enough to avoid violating the rights of adults.
Congress responded by passing COPA in 1998. The ACLU immediately challenged the law. A federal judge ruled the law was too broad to satisfy constitutional standards, and a federal appeals court ruled that the law's reliance on community standards to determine what is harmful to minors violates the Constitution because it imposes the standards of the most restrictive communities upon the entire country.
In 2002, the Supreme Court reversed that appeals court ruling, remanding the case to the lower court for further consideration of the law as a whole. Last year, the appeals court again struck down COPA, saying the law seeks to regulate too much speech.
