Oral arguments were heard March 2 in a third government try to get the Child Online Protection Act past the U.S. Supreme Court. Ashcroft v. ACLU, in which the issue is how to protect children from adult Internet materials and sites without trampling on adults' free speech rights, is expected to be decided during the current Supreme Court term - but exactly when is anyone's guess.
"It depends," said an American Civil Liberties Union worker who asked to be not identified when reached for comment by AVNOnline.com. "They're just handing down decisions now from the October and November docket. You really never can tell. It's different with every case. They'll decide it this term, but it could be as late as June or as early as next month."
Yahoo! News reported from AP that "[T]he Bush administration's top Supreme Court lawyer says he typed the words 'free porn' into an Internet search engine on his home computer and got a list of more than 6 million Web sites. That's proof, Solicitor General Theodore Olson told the Supreme Court on Tuesday, of the need for a law protecting children from a tide of online smut."
Several justices seem reluctant to endorse the wholesale censorship promoted by the COPA.
"It seems to me this is very sweeping," said Justice Anthony M. Kennedy.
AP reporter Anne Gearan said Justice Sandra Day O'Connor suggested if porn sellers are flouting the existing laws about obscenity, perhaps the government should go after them more aggressively.
According to Gearan, the "Bush administration has brought 21 indictments in two years alleging that Website operators and others crossed the line from acceptable smut to illegal obscenity, Olson told the court."
The Child Online Protection Act?s first version was struck down by the high court in Reno v. ACLU in 1997, with a replacement spurned by the justices two years later but sent back to the Third U.S. Circuit Court of Appeal. That court has struck down the law on two grounds: the first time on grounds that it lets the Internet be judged by "contemporary community standards" difficult, if not impossible, to enforce given the Internet's breadth; and the second time on broader free speech grounds.
The ACLU challenges the law on behalf of online bookstores, artists and others, including operators of Websites offering explicit how-to sex advice or health information, Gearan noted.
Chicago-based attorney J.D. Obenberger told AVNOnline.com that Congress is within its power to try to protect children, but the issue is whether they substantially burden adults' speech.
"The 'save our kids' argument is often a thinly-veiled attempt to reduce the nature of what is available to anyone to the level suitable for children," Obenberger said. "Michigan attempt[ed] to do that with books, overruled by the Supreme Court in the '50s, in Butler v. Michigan. Our society can't afford to become a western equivalent of Islamic culture, and the vibrancy of our society disappears when only those things suitable for children are available for adults."
This is the Supreme Court's second try with the COPA. Earlier, the high court had ruled the community standards issue by itself didn't mean the law failed constitutional muster.
The second version of COPA now under review would criminalize commercial Websites knowingly putting "harmful to minors" material within their unlimited reach, and could mean six months behind bars and $50,000 in fines for first-time violators and additional fines for repeat offenders.
First Amendment attorney Lawrence G. Walters, whose practice includes adult entertainment clients, told AVNOnline.com that, while much has been said about the COPA, it remains a good idea for adult Websites to implement and enforce age verification in one or another form.
"In the first obscenity prosecution against a Website, in 1999, the State tried to mix the issue of children and erotica by claiming that neighborhood kids were getting access to the site in question," said Walters, himself the creator of a verification program. "This had nothing to do with the obscenity charges, but it plays well with a jury. For the same reasons, adult Webmasters should be careful not to display sexually explicit material that is available to children without any form of age verification."
Walters also expects the Supremes to rule on Ashcroft v. ACLU some time in June. "The Supreme Court case has significant potential to restrict or expand the rights to sexual expression online," he said, "so we're all waiting for the opinion with bated breath."
The ACLU has maintained the COPA remains unconstitutional censorship that ignores other and potentially more effective tools to keep children from unrestricted adult Internet access. "COPA was passed in 1998, when the Internet was still relatively new and less understood," the ACLU argued in a filing. "COPA's bludgeon suppresses an enormous amount of speech protected for adults and is unnecessary and ill-tailored to address the government's interest in protecting children from sexually explicit content."
Obenberger said "the Victorian notion" of keeping children "properly shielded" from sexuality "has resulted in the highest rate of rape, sexual assault, and violence to women in the Western world.
"The pioneers of our country lived in one-room cabins with their families," he continued. "The children were not sheltered from the explicit sexual conduct of animals, and probably not sheltered from nudity and knowledge of actual human sexuality. These children built our nation. We do our own children no favors by keeping these things from them for 11 or 12 or 13 years and then dumping the knowledge, from parents or schoolmates, at the age of puberty."
But Obenberger also said that making no attempt to shelter children from healthy knowledge of sexuality doesn't mean graphic sex should be "foisted on anyone, young or old, unawares and without knowledge that it is coming... Congress' solution does not work.
"I am not insensitive to the issue that we have no online equivalent of the cashier in an adult bookstore with the job of keeping kids out," he continued. "And because I oppose a national ID system, I am not sure we can do anything short of segregating parts of the Internet for the exclusive use of kids, that gives them access to only what is fit for kids - but that, too raises confusing issues arising from the various stages of childhood (PG, PG13, R) and geography."
