Congress has tried twice to limit children's access to sexually explicit material on the Internet, but the effort has been tied up in constitutional knots.
The Supreme Court ruled the first attempt unconstitutional on free-speech grounds. Now, however, a majority of the justices appear receptive to the lawmakers' second try, after hearing a legal challenge to the law in March.
The government is asking the high court to reinstate the 1998 Child Online Protection Act (COPA), which makes it a crime for commercial organizations to make sexual material deemed “harmful to minors” available to children under 17.
“Internet porn is widely accessible, as equally accessible to children as a TV remote,” Solicitor General Theodore Olson told the justices during March 2 arguments.
But a lawyer for the American Civil Liberties Union (ACLU) insisted the law violates the First Amendment because it “suppresses” materials that adults have a right to view. “COPA criminalizes speech that adults under any definition have the right to access,” Ann Beeson told the justices. The government has “less restrictive alternatives” to controlling minors' access to indecent materials, she said, such as encouraging parents to install software filters that block sexually explicit sites.
The case — Ashcroft v. American Civil Liberties Union — marked the third time the Supreme Court has heard arguments on efforts to limit minors' access to Internet pornography. In pre-Internet cases, the Supreme Court ruled the government can prohibit children from having access to sexually explicit materials, but only if the law does not unduly interfere with adults' rights to read or view anything short of the stringent definition of legal obscenity.
In its first ruling on Internet porn, the court in 1997 struck down the 1996 Communications Decency Act. In a mostly unanimous decision, the court in Reno v. American Civil Liberties Union agreed with the ACLU's arguments that the law unconstitutionally interfered with adults' access to protected materials.
Congress tried to meet the court's objections when it approved the COPA in 1998. The new law applies only to commercial publishers on the World Wide Web, not to e-mail, chat rooms or news groups. In contrast to the earlier prohibition against “patently offensive” materials, the new law covers material found to be “harmful to minors” — defined as sexually explicit, patently offensive and lacking serious value for minors. The new law — like the earlier one — protects a Web publisher if it requires users to establish their age by a credit card, adult identification number or other device.
Despite the modifications, the ACLU immediately challenged the new law on behalf of an array of Web publishers. Plaintiffs included Internet privacy advocates, gay and lesbian services and the online magazine Salon — which publishes a widely read sex-advice columnist, Susie Bright.
The lawsuit had first reached the Supreme Court in 2002 after the statute was ruled unconstitutional, first in a broad ruling by a federal district court in Philadelphia and then on a narrower ground by the federal appeals court in Philadelphia. The high court said the appeals court was wrong to strike the statute on the ground that it allowed local community standards to be used in defining the scope of the law. The decision sent the case back to the appeals court to rule on other issues. The appeals court again ruled the law unconstitutional, and the Bush administration brought the case back to the high court.
Meanwhile, a third law aimed at protecting children from Internet porn — the Children's Internet Protection Act — was upheld by the court in June 2003. It required schools and libraries to install software filters on computers to restrict children's access to sexually explicit materials.
In the March 2 arguments in the COPA suit, Olson stressed Congress' efforts to target commercial pornography. Beeson countered by claiming the law threatened sites that provided safe-sex education. For instance, Bright's Salon columns would be covered, Beeson said, because they discuss “sexual pleasure.”
Justice Stephen G. Breyer appeared unconvinced. “I don't think that's prurient,” he said. “A discussion about sex is a totally different thing from a discussion that is itself supposed to be part of a sexual response.” In previous cases, Breyer has sometimes joined with members of the court's conservative majority to uphold government regulation of speech and expression.
Among the nine justices, only two — Anthony M. Kennedy and Ruth Bader Ginsburg — appeared strongly skeptical of the law. Kennedy questioned the breadth of the law, while Ginsburg voiced concerns that adults would be deterred from looking at sexually explicit materials if they had to identify themselves by using a credit card. Justice David H. Souter, who had voted to invalidate other Internet porn laws, was silent during the hourlong argument.
A decision is due by the end of June.
— Kenneth Jost