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.

At least five Supreme Court justices disagreed. But at the same time, they made clear that COPA may nonetheless be unconstitutional for other reasons.

"The scope of our decision today is quite limited," Justice Thomas writes for the majority. "We hold only that COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment."

The justices let stand an order blocking enforcement of the 1998 statute while sending the law back to the appeals court to consider a long list of other potential constitutional infractions.

The court's action is most significant, according to legal analysts, not because it upholds COPA, but because it upholds the broader application of the community-standards test as it relates to Internet pornography.

If the justices had struck down COPA on those grounds alone, the decision would have made it impossible to enforce any adult-obscenity laws related to material posted on the Internet, legal analysts say. Only one of the nine justices, John Paul Stevens, was prepared to go that far.

"All of them seem to leave it open to strike down this law on some other ground, and most of them seem to be aware of the problems of this whole area of law," says Marjorie Heins of the New York-based National Coalition Against Censorship.

In the Los Angeles case, the Supreme Court's decision makes it easier for local governments to crack down on adult-oriented businesses that are believed to be contributing to a higher crime rate. But only three justices signed on to Justice Sandra Day O'Connor's opinion, which remands the issue back to the appeals court.

In another indication of the splintered state of the court, Justice Kennedy concurred with Justice O'Connor but expressed reservations about interpreting the decision too broadly. Four other justices dissented.

At issue was whether a city ordinance requiring that adult businesses offer only one kind of service or product type per storefront violates the free-speech rights of the store owners.

The ordinance is aimed at preventing a clustering of adult businesses into mini red-light districts. The law requires that no two adult businesses may operate within 1,000 feet of each other.

The city later amended the law to prohibit the operation of multiple-use adult stores – those selling books and magazines as well as offering video viewing booths.

A federal appeals court had struck down the ordinance, saying the city had failed to justify the business restrictions because the police department's earlier study focused on multiple adult businesses rather than single businesses with multiple uses.

In reversing that decision, the high court cited a 1986 precedent allowing the regulation of adult businesses to control "secondary effects" on the community.