Supreme Court Hears Arguments for Internet Porn Law

Key the words “free porn” into a search engine on your home PC. Most likely, you will obtain a list of more than 6 million URLs, the government’s top lawyer said this week.

“Internet porn is persistent and unavoidable,” Solicitor General Theodore Olson, the lawyer for the Bush Administration, in cases before the federal courts, told the U.S. Supreme Court on Tuesday. Pornography is “as easily available to children as a TV remote.”

For the second time in recent years, the Supreme Court is hearing arguments for and against a federal law banning Internet pornography. An earlier law, the Communications Decency Act of 1996, was declared unconstitutional by all nine justices in the case, Reno v. ACLU.

The Usual Suspects

Supporting the current law, the Child Online Protection Act, is the Bush administration, which is charged by the U.S. Constitution with upholding federal statutes.

Fighting against the legislation are the usual suspects — the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation.

The case is called Ashcroft v. ACLU, Case No. 03-218. Several media organizations, including the Association of American Publishers, the Recording Industry Association of America and Volunteer Lawyers for the Arts, filed briefs with the court in support of the ACLU’s position.

“The [Child Online] Protection Act makes it a crime to communicate a whole range of information to adults and is ineffective at keeping children from material many people would agree is objectionable,” said Anne Beeson, associate legal director of the ACLU, in a statement. The Supreme Court first prohibited enforcement of an anti-Internet smut statute after the ACLU filed a case arguing it was an unconstitutional measure that inhibited free speech.

Olson, a leading conservative lawyer, who also was President Bush’s attorney in the unsuccessful Florida election challenge by then-Vice President Gore, told the justices that the revamped law was passed by Congress to provide protection for free speech.

Argument Not Persuasive

But the argument apparently wasn’t persuasive, prompting Justice Anthony M. Kennedy to proclaim that the Act is “very sweeping.”

The ACLU’s attorney, Beeson, added that the current law makes it a criminal offense to depict or describe nudity or even depict “the female human breast.” The Act, moreover, does not define what, specifically, is material that is harmful to minors, Beeson said.

An ACLU client, Dr. Mitch Tapper, attended the argument before the justices in Washington, D.C. The ACLU is worried that Tapper would be prosecuted under the federal law because he produces Web content that shows the disabled how to enjoy sex. “I could wind up in jail and bankrupt from huge fines,” said Dr. Tapper.

Although the federal law has never yet taken effect — due to years of court challenges by the ACLU and its partners — local authorities have been using state laws to prosecute alleged possessors of child pornography. Results have been mixed.

Is She 18 Years Old?

Last month, in suburban Chicago, the Westchester police department arrested 37-year-old local man Richard Scolaro for alleged possession of child pornography, Westchester Police Chief Robert J. Smith told TechNewsWorld.

The suspect was held on a US$100,000 bail bond, but he made bail and was released last month, though he was fired from his job as a custodian at a children’s recreation center in that suburb.

A case brought under the same Illinois statute earlier was dismissed when lawyers argued that the suburban police did not have probable cause to arrest the suspect, a photographer. That’s because they did not have proof that the subjects of the photographs were, in fact, under the age of 18 at the time of creation of the photos — and thus covered by the child porn law.

Calls from Private Sector

Problems with child pornography, however, continue to generate calls for government action.

“It’s high time effective measures are put into place to protect children from online porn spammers who flood e-mail inboxes with smut, enticing children and others to lose their souls,” C. Preston Noell, III, president of the Roman Catholic activist group Tradition, Family, Property, Inc., told TechNewsWorld in an interview.

“Filtering software alone won’t stop the flow, as it can easily be disabled,” he said. “Only a positive ban and crackdown with obscenity prosecutions will staunch it. Let’s hope and pray the Supreme Court upholds the Child Online Protection Act, and that lawbreakers are prosecuted quickly thereafter.”

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