A key case on kids and Web porn

Two of the most passionate causes in American life - the protection of children and the promotion of free speech - arrive simultaneously at the US Supreme Court today in a major case that will help define the scope of constitutional freedoms in cyberspace.

At issue before the high court is how best to protect children from pornography on the World Wide Web without violating rights guaranteed in the First Amendment that permit adult access to the same material.

On a broader level, the case, Ashcroft v. ACLU, is significant because it could establish the initial contours of any future government regulation of the Web. Alternatively, it could move the Internet further from federal oversight and hasten its development as a free-wheeling marketplace for an infinite range of images and ideas - whether good or bad, benevolent or dangerous.

"This is a crossroads case," says Marjorie Heins of the New York-based National Coalition Against Censorship.

The current Supreme Court term is shaping up as an important one for Internet regulation and pornography. Last month, the justices heard arguments in a case examining whether a computer-generated depiction of a child engaged in sexual activity amounts to illegal child pornography.

Possession or distribution of child pornography is a federal offense. Much of it is traded or sold over the Internet.

The case now before the court deals with a different aspect of pornography and the Internet.

In passing the Child Online Protection Act (COPA) of 1998, Congress sought to shield minors from the proliferation of pornographic material on adult websites. The law calls for the use of age verification mechanisms such as credit cards or adult identification numbers.

But a three-judge panel of the Third Federal Circuit Court of Appeals struck down the law in a June 2000 decision based on a challenge filed in federal court in Philadelphia.

Supporters of the law see it as an Internet version of various state laws requiring that adult pornography magazines considered harmful to minors be sold behind a store counter or displayed in a way that prevents the adult content from being viewed by children in the store.

Opponents of COPA say the law isn't tailored narrowly enough to avoid violating the rights of adults because it makes it harder for some adults to gain access to Internet pornography. They also say the law could be used to crack down on a wide range of sexually explicit material on the Web, which may be objectionable to adults in some communities but not to adults in others.

Under the law, adult website operators are subject to criminal sanctions should children be able to gain access to material deemed "indecent" for minors as determined by "contemporary community standards."

This "contemporary community standards" requirement in the law is at the center of the Supreme Court case. The justices must decide if the use of community standards to regulate adult websites that are available worldwide violates the free-speech rights of website operators.

In striking down COPA, the Third Circuit ruled that such reliance on community standards would allow the most conservative communities in America to dictate the level of censorship authorized by the law. That standard would apply equally to websites accessed in communities whose adults might not consider the material "indecent" or harmful to minors.

In defending the law, the Bush administration's solicitor general, Theodore Olson, says commercial pornographers on the Web already place most of their material behind age verification screens. He says the effect of the law would be to require the pornographers to place their "teasers," images meant to lure new users into their sites, behind age-verification screens as well.

"At most, COPA's reliance on community standards imposes a modest burden on adult access to pornographic material," Mr. Olson writes in his brief to the court, "and that modest burden is outweighed by the government's compelling interest in shielding minors from material that is harmful to them."

Ann Beeson, who is arguing the case against COPA for the ACLU, counters that website operators have no way of determining the characteristics of their patrons - whether by age or geographic location.

"Because Web speakers are without any means to limit access to their sites based on the geographic location of particular users," Ms. Beeson writes in her brief to the court, "they must conform to the standards of the most conservative community or risk criminal prosecution when their speech is accessed in those communities."

More is at stake over the "community standards" issue than simply the future of COPA. The same community-standards test applies to the general obscenity law for adult material on the Web, legal analysts say.

"If the justices accept the Third Circuit's view that you can't use community standards, then the present Internet obscenity law goes down the drain," says Paul McGeady of Morality in Media Inc. in New York.

Mr. McGeady says the community-standard requirement is not geographically based. Rather, he says, it is based on a consensus of average adults about what they consider to be harmful to minors.

McGeady says when a jury in a car-accident case is asked to determine the negligence of the parties, they are instructed to base their verdict on what a reasonable person would decide. The same would apply in Internet pornography cases. "It is similar to 'I know it when I see it,' " he says.

Opponents of the law say parents can protect children by monitoring their children's Internet viewing habits and using filtering software that blocks access to specified sites.