Justices Rethink Pornography

The Supreme Court said Tuesday that it would decide whether the government could make it a crime for a commercial Web site to make available sexually explicit material to minors.

The court agreed for the first time to consider allowing the government to enforce a 1998 federal law known as the Child Online Protection Act.

Congress has been determined to try to shield children and teenagers from pornography on the Internet. But so far, free-speech advocates have succeeded in wielding the 1st Amendment as a shield against federal enforcement.

The new case, to be heard in February, will be the third time the high court has reviewed such measures. In each instance, the same problem has arisen. Protecting computer-using minors from explicit sex has the effect of limiting, to some degree, what is available to adults. And according to the lower courts, that limitation of the rights of adults violates the 1st Amendment.

Six years ago, the Supreme Court unanimously struck down a law that made it a crime to post or transmit any “indecent” message on the Internet. The justices characterized the measure as so broad that it amounted to the equivalent of policing people talking on the telephone.

A year later, Congress tried again and drafted a narrower law. The new measure applied only to a “communication for commercial purposes” that was posted on the Web. And it applied only to material that was “harmful to minors.” This in turn referred to a depiction or description of “an actual or simulated sexual act” or “a lewd exhibition of the genitals or a female breast.”

Opponents of the law say that definition is vague and could encompass a huge amount of material. Sponsors of Internet sites that offer sex advice, including those for people who are HIV-positive, include explicit accounts, and these could be subject to prosecution if teenagers were shown to have gained access to the sites, opponents of the measure said.

These critics of the law say parents should protect their children by buying software that screens out sexually explicit material.

However, backers of the law stressed that sponsors of Web sites could exclude children -- and protect themselves from prosecution -- by requiring a credit card or an adult-access code.

Attorneys for the American Civil Liberties Union have led the challenges to the Child Online Protection Act, and they have won twice before a federal appeals court in Philadelphia.

In the first ruling, the appeals court said there was no national standard for what was “harmful to minors,” and the most conservative community in America could set the standard if prosecutions were brought there.

The Supreme Court took up that question two years ago but sent the case back to Philadelphia to reconsider the matter. On the second try, the appeals court struck down the law because it “prohibits a wide range of protected expression” between adults.

In the latest appeal in the case, now known as Ashcroft vs. ACLU, the government lawyers argue that the Internet law is the equivalent of the “blinder racks” in convenience stores that shield sex magazines from perusal by minors.

If minors are to be protected from commercial pornography on the Web, there “is no alternative to the Child Online Protection Act,” Bush administration lawyers told the court.