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Sunday, Nov 8, 2009
The government tells the Supreme Court that Web publishers should relax -- a Web censorship law only applies to the "worst" porn peddlers. But why should we trust it?
Mar 3, 2004 | 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."
