November 26, 2001 04:05am
Supremes Review Congressional Porn Effort
by: Scott Ritter, DowJones
(WASHINGTON, DC) -- As the Supreme Court [http://www.SupremeCourtUS.gov] considers the fate of Congress's [http://www.Congress.gov] latest attempt to shield youngsters from Internet smut, one question looms large: Do "community standards" exist in the far-reaching, freewheeling realm of cyberspace?
The justices will ponder that First Amendment yardstick Wednesday, when they hear a Bush administration bid to revive the 1999 Child Online Protection Act [ http://COPAcommission.org ]. A federal appeals court in Philadelphia, siding with the American Civil Liberties Union [ http://ACLU.org ] and several Web sites last year, said the statute seemed to trample constitutionally protected speech and upheld a preliminary injunction blocking it.
At the heart of the debate is the law's "community standards" test, which the appeals court said imposes "an impermissible burden" on protected speech. Since Web publishers can't block access based on where a visitor lives, their sites could be "judged by the standards of the community most likely to be offended by the message," the court said.
Congress, joined by religious and family groups such as the policy arm of the Southern Baptist Convention [ http://SBC.net ] and the conservative American Center for Law and Justice [ http://ACLJ.org ], has lined up on one side of the debate. On the other is a slew of Web sites -- some racy, some mainstream -- led by groups including the American Civil Liberties Union and the Electronic Frontier Foundation [ http://EFF.org ].
The Child Online Protection Act was passed by Congress after the Supreme Court, in a 7-2 ruling, struck down a 1996 Internet-decency law as overly broad. The new, narrower version makes it illegal to post material deemed "harmful to minors" unless good-faith efforts are made to keep it out of view of children under age 17. The law relies largely on "community standards" to identify harmful material.
Lawmakers say the statute applies only to commercial Web sites, not to e-mail, newsgroups or some chat rooms, and it doesn't cover material with literary, artistic or scientific value to children. Supporters say the law's primary target is "teaser" images that porn sites use to lure paying customers -- not sites that may have some sexual content. Critics and the appeals court contend the changes aren't enough. The child-protection law "clearly makes it a crime to communicate protected speech to adults on the World Wide Web," says Ann Beeson, the ACLU attorney leading the challenge.
Architects of the statute, including Sen. John McCain (R., Ariz.) and retired Rep. Thomas Bliley (R., Va.), say what is "harmful to minors" isn't decided by a geographical community. Instead, they wrote in a brief, it is based on the views of the "American adult community as a whole." The law, they said, "was to be adapted to the World Wide Web by using a 'new' standard of what the American adult-age community as a whole would find prurient and offensive for minors."
"Basically, what you have here is that Congress saw a situation where the law had not caught up with the technology," says Jay Alan Sekulow, chief counsel of the American Center for Law and Justice. Groups such as Morality in Media [ http://MoralityInMedia.org ] and the Family Research Council [ http://FRC.org ] say Congress has an obligation to keep Internet pornography away from youngsters' view, comparing it to laws requiring shop owners to keep adult magazines under wraps or the government's curbs on indecent broadcasts.
Mr. Sekulow predicts the law will pass constitutional muster because Congress aimed it at commercial sites that "knowingly" make pornography available to youngsters. That excludes mainstream Web magazines or Webzines, medical Web sites and the like, Mr. Sekulow says, and "speaks well for the statute's scope and constitutionality."
But the law worried plaintiffs in the original lawsuit including the Sexual Health Network [ http://SexualHealth.com ], a Web site geared toward people with disabilities, and PlanetOut [ http://PlanetOut.com ], an online community for gay, lesbian and bisexual people. Other plaintiffs include RiotGrrl [ http://RiotGrrl.com ], a Web magazine targeted to young women, and Salon Media Group Inc.'s general-interest magazine Salon.com [ http://Salon.com ].
Critics of the law such as the Association of National Advertisers [ http://ANA.net ] say the statute is ineffective because it doesn't apply to the "enormous amount" of pornography on sites outside the U.S. "This court has repeatedly rejected the notion that adults may be reduced to reading only what is fit for children," the industry group says.
The Bush administration says technology to keep children from viewing raunchy commercial Web sites is readily available. At least 25 services offer identification numbers that let adults access those sites. But some Web surfers with privacy concerns shun the idea of registering with an "adult check" service.
According to the Justice Department [ http://www.DOJ.gov ], in 1998, there were about 28,000 X-rated Web sites generating about $925 million in annual revenue. The number of sites has grown substantially. One adult-registration service says it offers access to more than 280,000 sites.