ACLU attorney takes all-or-nothing approach in arguing against COPA

Thursday, November 29, 2001

When lawyers argue a difficult case before the Supreme Court, they often face a tricky choice: making concessions to help the justices fashion a compromise, or standing fast in hopes that the court will see the case their way.

American Civil Liberties Union lawyer Ann Beeson picked the latter approach yesterday as she argued that the Child Online Protection Act, Congress’ second attempt to regulate Internet content accessible to children, is unconstitutional and cannot be interpreted or limited in any way that would comply with the First Amendment. Protecting children from Internet content is the job of parents, she said, not Congress.

It was a gamble, and some justices seemed perturbed that Beeson was unwilling to give any ground. But it also appeared that she had managed to convince some of the justices that the law could not be salvaged. Especially since the court gave the Internet exalted First Amendment status in its 1997 decision Reno v. ACLU striking down Congress’ first attempt at regulation, a majority of the court may decide that the new law, too, must fall.

In arguments yesterday in Ashcroft v. ACLU, Solicitor General Theodore Olson argued forcefully that Congress had taken the court’s advice in the Reno decision in drafting the new law. The new law, he said, is more narrowly targeted toward commercial sites that sell material that could be harmful to minors.

But the justices zeroed in almost exclusively on how jurors in cases brought under the law would determine what material is harmful to minors.

The law says that determination would be made according to “community standards” — a test developed by the court decades ago to evaluate books and movies that are allegedly obscene. But several justices wondered what that standard could mean in the context of the Internet, where material is viewable nationwide and worldwide, with no way to limit access to a particular community. It was for that reason that the lower court, the 3rd U.S. Circuit Court of Appeals, enjoined enforcement of the law.

Justice Stephen Breyer asked if interpreting “community standard” to mean “national standard” in the Internet context could solve the problem. Olson liked the idea, arguing that in a time of national media and communications, local differences were minimal. He also said it was “reasonable to conclude” that Congress meant to apply a national standard but adopted the “community standard” language from prior Supreme Court cases. Justice John Paul Stevens seemed dubious, suggesting that the government was asking the court to rewrite the statutes — which the court usually declines to do.

Beeson said Breyer’s suggestion of adopting a national standard would be “an exercise in futility.” Applying a national standard, she said, would give the “least tolerant” community in America veto power over material that might not be deemed harmful in New York or Las Vegas, for example. Justice Antonin Scalia appeared to agree, asking, “What does a juror who has spent his whole life in North Carolina know about Las Vegas?”

Even a modified law would still deter a vast amount of adult speech, Beeson said, asserting that many of the organizations she represents — art sellers and purveyors of information on sex and health, for example — would be fearful of prosecution and would shut down or censor themselves.

“Can’t the government do anything?” asked Justice Ruth Bader Ginsburg. Beeson replied that a congressional commission created by the law had recommended that parental involvement and screening software would be more effective than government-imposed screening to ensure that only adults have access to the material.

Olson dismissed Beeson’s fear of self-censorship as the same “sky-is-falling defense” that has always been used to attack reasonable anti-obscenity laws. But that defense has often worked in the past, and it is up to the justices to decide whether it will work again to strike down the Child Online Protection Act. A decision could come any time before the court adjourns next summer.

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