Web Pornography in Supreme Court’s Sights

The era of the unregulated Internet may be nearing an end.

Congress wants to make it a crime to put sexually explicit material on the Web if it can be obtained freely by children and teenagers.

Until now, the courts have blocked all the moves to regulate free speech on the Internet, but the Supreme Court justices strongly suggested during arguments Wednesday that they will revive a new law that targets commercial pornographers.

The easy access to pornography on the Internet is “an urgent national problem,” said U.S. Solicitor Gen. Theodore B. Olson, and he described the pending law as a “carefully crafted solution.”

In the days before the Internet, children could be shielded from sexually explicit material through various means, from limiting access to adult bookstores to hiding magazine racks in convenience stores.

But the Internet has knocked down all the screens, Olson said.

Four years ago, the Supreme Court struck down a broad computer “indecency” law on free-speech grounds. However, Congress rewrote a new measure to focus on commercial pornographers who refuse to limit their audience to adults.

The law makes it a crime to put on the Web “for commercial purposes” sexually explicit material that is “available to any minor” but has no “serious literary, artistic, political or scientific value.” Violators can be fined up to $50,000 and sentenced to up to six months in prison.

Web site operators can shield themselves from prosecution by requiring users to have a credit card or adult access code.

The law has never gone into effect, however. Lawyers for the American Civil Liberties Union challenged it on free-speech grounds, and judges in Philadelphia issued a national order blocking enforcement of the law.

The issue came before the high court Wednesday in a case now known as Ashcroft vs. ACLU, 00-1293.

The ACLU’s Ann Beeson said the law threatens to crimp the free-speech rights of “millions of speakers on the Web,” even though they are not in the pornography business and do not seek to sell to minors.

The plaintiffs who challenged the law include a bookstore, an art gallery, the writers of a sexual advice column and a gay newspaper.

Because some items or photos on their Web sites are sexually explicit, the operators could be threatened with criminal prosecution, Beeson argued. The sites will be deemed “commercial,” she said, because they make a profit, not because they sell pornography.

If put into effect, the law gives these Web sites only two options, she said. “You either have to set up a costly screen [such as the adult access code] or you have to self-censor.”

During the hourlong argument, however, the justices said they were not persuaded that the law went too far.

“You’re only talking about commercial speech here,” said Justice Sandra Day O’Connor. She suggested that the government will use the law to prosecute only sellers of pornography.

Justice Antonin Scalia said Web site operators will have to be more careful.

“When you publish something nationally, you take your chances,” he said. “We did that for obscenity. Why can’t we do it for this pornography?”

Several of the liberal justices asked about narrowing the law, but the ACLU lawyer rebuffed them.

Beeson insisted there was no way to regulate the Internet without violating the free-speech rights of adults.

That all-or-nothing proposition appeared to go too far, even for the justices who sounded troubled by the law.

The justices will issue a ruling on the case in several months.