Supreme Court revisits arguments in online pornography case

WASHINGTON -- Ordinarily, US Solicitor General Theodore B. Olson prepares for an appearance before the Supreme Court by acting out his argument before a pretend court. This time, for a case about the Internet, he added a new twist: searching online for free porn.

At his home last weekend, Olson told the justices yesterday, he typed in those two words in a search engine, and found that "there were 6,230,000 sites available."

The top lawyer who represents the Bush administration before the Supreme Court said the search's results illustrate how pornography on websites "is increasing enormously every day," a central point in his argument for saving an antipornography law that was enacted six years ago but has yet to go into effect.

Olson also described a second Web search he performed by typing in "disable filter." He said he got "a screenful of step-by-step ways to dismantle" software to block explicit websites. "Blocking at home," he said, "will not solve the problem."

Olson appeared in the latest round of a long conflict between the Supreme Court, Congress, and the executive branch over federal laws designed to stop sexually explicit material on the Internet from reaching children.

So far, the court has nullified those laws, refusing even to allow the latest version -- a 1998 law -- to begin operating. But after an hourlong hearing, it appeared that the antiporn campaign may be gaining sympathy within the court. Few justices spoke critically of the law, and Justice Stephen G. Breyer emerged as a vigorous champion of the measure's goal.

The Child Online Protection Act makes it a crime for anyone to communicate, for commercial purposes, any material on the Web that would be "harmful to minors." It seeks to protect anyone under age 17, and bans material that is "patently offensive to minors," if it lacks "serious value for minors." A person may defend against a charge of violating the law by requiring use of a credit card, adult access code, personal identification number, or proof of age to gain access to the banned material.

The justices had reviewed the law once before, in 2001, without producing a definitive ruling. The statute has been ruled unconstitutional twice by the US Court of Appeals for the Third Circuit, based in Philadelphia.

Breyer told the law's challenger, American Civil Liberties Union lawyer Ann E. Beeson of New York, "What Congress is interested in are professional pornographers." The solution chosen by lawmakers, he added, was a type of "zoning on the Internet," requiring adults who want to see sexually explicit items to "identify themselves as not a child."

The justice then asked, "If that is not a good solution, what is?"

Beeson said that there were a lot of ways Congress could attack the problem of children's access to Internet pornography, including mandatory filtering, control over misleading domain names that hide pornography, and software that creates "a safe environment for children." What Congress has chosen instead, she said critically, is a criminal law that threatens to send to jail even Web columnists who discuss sexual pleasure as a topic for adults.

Breyer, however, shot back that Congress was not trying to curb online discussions of sex as a serious topic, but rather material that was "looking for an emotional response, that was part of creating a sexual response. There is a night-and-day difference," Breyer said.

Justice Sandra Day O'Connor expressed concern that the Justice Department had brought "so few prosecutions" against Internet obscenity that is illegal even for adult viewers, and suggested that a crackdown would help eliminate much of the material.

But Breyer doubted that would be a better alternative to the child-protection law. "A crusade against obscenity," he said, "might be worse" in terms of protecting First Amendment free expression values. "It might be preferable to let adults go see anything [on the Web], but with some burdens: They would have to identify themselves as not a child."

Breyer also pressed Beeson repeatedly to identify the kinds of Internet expression that would be legal for adults to access that would be made illegal by the 1998 law. He seemed openly skeptical about the list she provided, which included the online sexual advice column of Susie Bright on Salon's website.

Even Justice John Paul Stevens, considered the court's most liberal judge on First Amendment issues, hinted that he could see little constitutional problem in requiring adults to "self-identify" in order to get access to sexually explicit sites. He said the 1998 law required the protection of privacy of adults who do obtain access.

Among the justices, Anthony M. Kennedy seemed to have the most reservations about the 1998 law's validity, suggesting that Congress had written the law so broadly that Web operators would not know what had been criminalized. Justice Ruth Bader Ginsburg also voiced some of that concern.

The court is expected to decide the case by early summer.