Struggling to find a balance between protecting children from online smut and preserving free speech, the Supreme Court on Nov. 28 questioned whether a sweeping national standard could rule the unruly internet.

There can be no objective nationwide standard to judge what is damaging for youngsters but might have artistic, educational, or other value for adults, said American Civil Liberties Union lawyer Ann Beeson.

“A national standard would be an exercise in futility,” she said.

The court is expected to rule next year on the Child Online Protection Act, Congress’ latest attempt to shield children from sexually explicit pictures and other material readily available to anyone with a computer. The court struck down an earlier version of the legislation as an unconstitutional limit on free speech.

At issue this time is whether it is possible to wall off internet content deemed “harmful to minors” by using what Congress called “community standards” of what is appropriate for youngsters and teen-agers to see.

The ACLU claims that community standards would end up meaning the standards of the most conservative community in the country, since the internet spans all communities—permissive, conservative, and in-between.

The government claims that community standards are workable online, because reasonable people generally agree about what should be out of bounds.

Several justices seemed skeptical.

“Would it be possible for a North Carolina jury … to decide whether [online material] would offend the standards of Las Vegas or New York City?” asked Justice Antonin Scalia.

Justice Anthony M. Kennedy asked whether a jury in California should take into account the views of an expert witness brought in from New York.

“Jurors are allowed to draw from their experience, which necessarily comes from the community in which they reside,” replied Solicitor General Theodore Olson, the government’s top Supreme Court lawyer.

A federal appeals court in Philadelphia barred enforcement of the 1998 law because it said online community standards is a concept so broad and vague that it is probably unconstitutional.

The law makes it a crime knowingly to place objectionable material within a child’s easy reach on the internet. Violation can carry fines or six months in jail. The act requires commercial web sites to collect credit card numbers or access codes as proof of age before allowing internet users to view online material deemed harmful to minors.

The law is narrower and more specific than the 1996 Communications Decency Act, which the Supreme Court struck down as unconstitutional in 1997.

Congress got it right this time, Olson argued Nov. 28.

The law would put internet pornography and other explicit material on the same footing as material offered for sale in bricks-and-mortar bookstores or convenience stores, Olson said. Children are not supposed to see pornography in such establishments, so it comes wrapped in paper or is displayed behind a screen.

The ACLU claims that Congress’ second attempt is just as flawed as the first, in large part because it remains unclear who would draw the line between appropriate and inappropriate material and how it would be drawn.

Sexually explicit words and pictures that are deemed indecent but not obscene are protected by the First Amendment. Adults may have free access to such material, but children may not.

The ACLU sued on behalf of several legitimate businesses that claim their online offerings would be restricted, even though the law is aimed at much cruder content.

Mitch Tepper runs a for-profit web site that dispenses specific sexual how-to advice to the disabled. He answers questions online and posts articles and manuals that he feels many people would find shocking.

“I’m here to protect my rights as a speaker, as a publisher, to present accurate, straightforward sexual health-related information on the web,” Tepper said after the argument session, “without having to second-guess every time I answer a question whether a community, national or otherwise, is going to [say] this information that he’s giving … to an adult is harmful to their minor children.”

The case is Ashcroft v. ACLU, 00-1293.

Links:

Appeals court ruling in ACLU v. Reno
http://www.uscourts.gov/links.html (click on 3rd Circuit)

American Civil Liberties Union
http://www.aclu.org

Tepper’s web site
http://www.sexualhealth.com