- The Washington Times - Thursday, November 29, 2001

The Supreme Court yesterday debated whether community standards could shield children from Internet pornographers who Solicitor General Theodore Olson said "decide to pollute the spring from which we all drink."
The latest federal effort to keep children away from explicit smut that is legal for adults centers on whether any "community standard" can apply to a national audience under the 1998 Child Online Protection Act (COPA).
"If we said 'community' means the entire audience the entire United States, would you believe you won?" Justice Stephen G. Breyer asked Mr. Olson.
"I would, your honor," Mr. Olson replied.
"Under any standard, whether national or local, this law violates the First Amendment," said American Civil Liberties Union attorney Ann Beeson.
She suggested that parents use filtering software to block explicit sex sites the way bookstores subject to "blinder laws" would hide sexy magazines in plain brown wrappers.
COPA would require commercial Web site operators to impose electronic proof-of-age systems before allowing Internet users to look at material believed to be harmful to minors.
Calling the estimated 28,000 explicit Web sites operated by an $8 billion adult pornography industry "a desperate problem," Mr. Olson defended pornography controls enacted after the high court struck down the Communications Decency Act in 1997 on free-speech grounds.
"All the obscene material that is now behind the screen will be in front of the screen. Children will be seeing everything," Mr. Olson said in asking the Supreme Court to overturn an appellate court injunction blocking enforcement of COPA.
Screens are gateways that require credit cards or other proof of age to see more explicit material after viewing the "teasers" visible to anyone reaching a site.
"As long as they can type and read, they will find it," Mr. Olson said. He said many children "discover explicit and offensive porn" by accident and told the justices one example was www.whitehouse.com, which offered offensive pornography, and often was confused with www.whitehouse.gov.
Mr. Olson said he didn't believe Congress intended to enact a national standard, but told Justice Breyer he would consider it a victory if the court interpreted the law that way.
"We're now in an era of national television, national media an Internet reaching millions and millions of households," Mr. Olson said as he seemed to suggest the old test of a community's standard was outdated.
Ms. Beeson said that would lead to censorship of material that was legal for adults, or self-censorship by publishers hoping to avoid arrest.
"Our clients don't ever want to come before a jury. That's the problem, of course," she said, noting that violators face six months in jail and fines.
"COPA makes it a crime to communicate protected speech to adults," she argued, citing as examples photographs by Andres Serrano on a major art dealer's Web site and advice on sexual pleasure for the disabled on sexualhealth.com. The art dealer and Mitchell Tepper of sexualhealth.com are ACLU clients in the case.
Ms. Beeson contradicted Mr. Olson's grim prediction that an adverse ruling for the government would erase controls on obscene material that would be illegal for both adults and minors.
"There still would be nothing to stop the Justice Department from vigorously prosecuting obscenity," Ms. Beeson told the justices.


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