Porn cases exacerbate divide on high court

The nation's highest court is at a crossroads over what to do about smut.

Like members of Congress and American society as a whole, the US Supreme Court is struggling to find the right balance between free-speech protections and government regulations designed to restrict the spread of pornography.

At a time when the court is taking an increasingly strident posture in some areas of the law like federalism, the high court's First Amendment jurisprudence as it relates to pornography is very much a work in progress, legal analysts say.

In two important First Amendment cases decided this week, the justices upheld government regulations of so-called adult activities viewed as potentially harmful.

The court, on narrow grounds, upheld a law aimed at protecting children from pornography on the Internet. And it affirmed a zoning ordinance in Los Angeles barring the creation of certain adult-oriented stores that might attract a higher crime level.

But those decisions come less than a month after the justices struck down, by a 6-to-3 vote, a law that banned computer-generated, virtual-child pornography.

The three cases – two affirming regulations and one striking them down – highlight a constitutional fault line among the justices on pornography-related issues, with Justices Anthony Kennedy and Clarence Thomas the only two members of the court who have voted on the majority side in all three cases.

The divide on the court on such First Amendment issues has resulted in splintered decisions and a fair amount of confusion in lower courts – and Congress – about where to draw the line between free speech and anti-pornography regulations.

Obscenity law has always been a difficult area for the high court, but the explosion of pornography on the Internet has presented a new level of First Amendment challenges for the justices.

"You have this strange situation where the court has recognized that its precedents are inadequate to handle this in the context of the Internet, and yet they seem determined to abide by those precedents," says Steve Fitschen of the conservative National Legal Foundation in Virginia Beach.

In upholding the Child Online Protection Act (COPA) on Monday, the justices affirmed Congress's reliance on "contemporary community standards" to guide enforcement of the Internet porn law.

A federal appeals court in Philadelphia had struck down COPA on grounds that the community-standards test, similar to the test in adult-obscenity cases (via a 1973 Supreme Court precedent), cannot be constitutionally extended to cases involving material posted online.

The appeals court said reliance on such a standard would empower the most conservative communities in the nation to dictate the content of the Web.

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