A menace haunts the land — a “very serious national problem” that is causing “irreparable damage to our most precious national resource.” Eleven million souls fall victim to this scourge every day, yet it has resisted all efforts to control it.
That’s the dire picture U.S. solicitor general Theodore Olson painted at Tuesday morning’s Supreme Court oral arguments. But the case wasn’t about terrorism, or the environment, or violent crime. Olson was telling the highest court in the land that the Republic, engulfed by a glut of pornography online, is imperiled by smut. The 1998 law at issue this week has hung on to life, through one close legal call after another, just long enough to get drafted in 2004′s edition of the culture wars. Upset about Janet Jackson’s Super Bowl nipple flash? Olson and his allies have a plan to sequester every “post-pubescent female breast” from the wrong sets of eyes online.
Now, certainly there is a great deal of porn on the Internet. Olson, in an enterprising display of legal research, declared that he’d typed the words “free porn” into Google and found “6 million sites.” (He has a poor grasp of the difference between Web “sites” and the pages that constitute search results; his confusion is representative of the government’s blurry vision on this subject.)
But what’s the best way to keep this stuff away from kids who shouldn’t see it? The government’s answer is a law called the Child Online Protection Act (COPA) that Olson was defending. The statute makes it a crime to “knowingly” publish on the Web “any material that is harmful to minors,” with penalties of up to $50,000 and up to 6 months’ imprisonment for each day of publishing such material. Publishers are supposed to be able to protect themselves from prosecution by requiring site visitors to register with their credit cards, thus ostensibly demonstrating their adult status.
Olson described the 1998 statute as a narrowly targeted, well-crafted effort to stem the flood of prurient images accessible to the underage Web surfer. “How else,” Olson asked, “could Congress have done it?”
Since Salon is a party to this proceeding — we were one of the plaintiffs in the American Civil Liberties Union’s 1998 challenge to the law, and we have followed it through its many rounds in court over the past five years — I viewed Tuesday’s arguments through partisan eyes. I don’t believe COPA is an effective law, a practical law, or a constitutional law, for the same reasons cited by ACLU attorney Ann Beeson, and by the federal appeals court whose ruling against COPA Olson was appealing to the Supremes: This law is certain to have a palpable chilling effect on the Internet’s great experiment in free speech and democratic self-expression; and there are alternative, more effective approaches for achieving the state’s goal of protecting minors.
But Olson explained to the nine justices that none of the issues raised by the plaintiffs in this proceeding — in addition to Salon, they included a variety of sites and organizations — really mattered, because the law didn’t apply to any of them. Its harsh punishments are aimed only at “the worst stuff” — commercial pornographers. Art galleries with sexy images? Sex advice columns in Salon? That’s all cool with Olson. We should all relax. The government would never apply COPA to any of our material cited in the lawsuit: “Susie Bright would not be defined as prurient.”
Well, it was certainly gratifying to be given this pass, this get-out-of-jail-free card, from Olson — a lawyer who has come in for his share of criticism in Salon over the years. (Indeed, his Tuesday argument lived up to our description of him in 2001 as, among other things, “A lawyer who makes ironclad assertions that later turn out to be false and misleading.” At one point he told the court that “Susie Bright writes for Salon Magazine, by the way,” and incorrectly asserted that “in order to get her columns, you have to register.” Now, for reasons having nothing to do with COPA, Bright’s columns are no longer available from our archives. But we continue to publish sex-related content, and none of it requires that you register to view it.)
Alas, any sense of security we might take from Olson’s magnanimity fades once we review the wording of COPA itself. If you commercially publish sexually explicit content intended for adult reading online — even if, like us at Salon, you do not consider yourself a pornographer — the law sure sounds like it covers you. Of course you could rely on the word of the solicitor general of the United States.
But what if he changes his mind? Earlier government filings on COPA offered considerably different views of the material the ACLU gathered for its case — which, in addition to Salon’s sex columns, included images presented as part of sex information sites and descriptions of gay and lesbian sexual pleasure. The government’s case cites only relatively hardcore porn images, but as Beeson pointed out, COPA covers text as well as images.
How are we supposed to determine the difference between the “worst stuff” and the stuff that Olson thinks is OK? Web sites don’t wear trench coats. And — as Justice Sandra Day O’Connor asked Olson — why can’t the government, if it’s truly interested in cracking down on the “worst” commercial porn, simply use existing obscenity statutes? Why do we have to carve out a fuzzy new “harmful to minors” zone exclusively for the Web, and turn the federal government’s powerful legal guns at any publisher unlucky enough to wander into it?
The sad truth is that COPA, if enforced (it has been on judicial hold since early 1999), would accomplish precious few of its aims. Vast quantities of Web porn would continue to be made available to minors in the U.S. from servers located abroad, beyond the reach of Olson’s prosecutors. The law covers only the Web, not other online channels — including e-mail spam, one of the most potentially upsetting means by which some pornographers get their goods in front of the wrong eyes. In the meantime, nearly all of the larger, more established U.S.-based porn publishers already use the COPA-mandated “adult check”-style credit-card screens.
That means that, if the Supreme Court decides to agree with Olson and uphold COPA, you won’t see a whole lot of prosecutions of actual commercial pornographers. Who does that leave? Publishers like Salon, who sometimes provide material intended for adults that is not pornographic, by most community standards of 2004, but that parents might not want their children to view. Such parents, of course, have a whole range of alternatives today for keeping Salon’s sex articles away from their kids. Filter technology isn’t perfect, but it does a pretty good job of screening out dirty words and fleshly images.
Meanwhile, requiring site visitors to prove they’re adults by whipping out their credit cards before viewing potentially controversial material is a sure recipe for an unconstitutional “chilling effect” on speech that is supposed to be protected by the First Amendment: Since we can’t be sure what material the law really covers, we can either risk jail or self-censor. Most businesses will choose the latter. And the Web will take a big step toward the blandness and conformity that pervade so many other media today.
Will the Supreme Court let that happen (a decision is likely by June)? Predicting the court’s leanings based on oral debate is a fool’s game. The looks of the judges on Tuesday — from the silent Clarence Thomas, head in his hands; to the whimsically rocking Antonin Scalia; to the quite possibly slumbering David Souter — revealed little. O’Connor’s suggestion that the Justice Department might express its concern for the welfare of children simply by enforcing existing laws, and Justice Anthony Kennedy’s declaration that COPA was “very sweeping,” offered some hope that the Supreme Court — which passed up its first chance to put a stake through COPA’s heart — may finally put this law out of its misery.
In the meantime, anyone publishing material on the Web that might run afoul of the feds can rest easy. Olson assures us that we can ignore what COPA says and trust prosecutors’ good sense. After all, can’t we count on John Ashcroft’s Justice Department to do the right thing?