WASHINGTON -- The Supreme Court wondered on Wednesday whether a federal law designed to shield children from sexually explicit websites would imperil legitimate online publishers.
The justices focused on an extraordinarily narrow point: How the Child Online Protection Act (COPA), which restricts erotic material that offends "contemporary community standards," would apply to the virtual communities of the Internet.
"Doesn't any jury necessarily apply the standards of its own community?" asked Justice Antonin Scalia. "What does someone who was raised his whole life in North Carolina know about Las Vegas?"
Other justices wondered if Congress truly intended to craft a national standard for smut -- or whether COPA might allow a Bible Belt prosecutor to shut down lurid websites located in far more permissive areas of the United States.
"I have a California jury," said Justice Anthony Kennedy. "Is it proper or is it necessary for that jury to consider what the standards are in other parts of the country before it renders its verdict?"
"Yes, that would be possible," replied Ted Olson, the solicitor general for the Justice Department.
Olson seemed to flip-flop. At one point he said that "the community standards prong does not have to apply to a specific community," but later said, "I don't necessarily think that Congress was trying to impose a national standard."
COPA limits commercial websites from distributing any "harmful to minors" photographs, recordings or written text that deals with sex, that has no value to people under 17 years old, and that an average adult would find offensive. Violators can be fined up to $50,000 and imprisoned for up to six months.
Last year, the Third Circuit Court of Appeals in Philadelphia ruled that COPA violates the First Amendment's guarantee of freedom of speech. Hoping the high court will toss out a lower court order that temporarily has blocked prosecutions under COPA, the Justice Department appealed.
An attorney for the ACLU, which brought the lawsuit, said her clients would still fear prosecution even with a national community standard. Ann Beeson, an ACLU litigator, said that "adults are going to be deterred" from publishing material online that they could sell in physical bookstores.
Beeson stressed that federal law already prohibits obscenity and child pornography. Harmful-to-minors material, she said, is a far broader category that some courts have found to include sexually explicit works of art and literature.
The ACLU and its co-counsel are representing a group of online publishers including the Sexual Health Network, ArtNet, PlanetOut, and Salon.
During the oral arguments, which lasted an hour, the justices seemed to be trying to find a middle ground between tossing out COPA as unconstitutional and upholding it intact.
"Based on the arguments today, they appear to want to leave Congress with some constitutional power to try to address the problem," says Orin Kerr, a former Justice Department attorney who is now a law professor at George Washington University.
Kerr, who attended the hearing, said: "If people get their standards at least in part from the Internet, and the Internet is the same everywhere you go, what does it mean to have a 'local community' standard? Has the local community standard test outlived its usefulness in First Amendment law?"
That's one question the Supreme Court doesn't seem to want to answer, at least not yet.
Local community standards are one of the bedrock principles of obscenity law -- as outlined best in the 1973 Miller v. California case -- and removing them would disrupt the foundation upon which many future prosecutions and convictions will rest.
Chief Justice William Rehnquist strongly suggested that he doesn't want a ruling in the COPA case that could affect obscenity law -- especially obscenity law as applied to the Internet.
"Whether it was obscenity or not depended on community standards," Rehnquist said. "Why should it be different for (harmful-to-minors) pornography than for obscenity?"
He said it's "no problem to subject a publisher to different standards throughout the country."
It was Rehnquist, before he became chief justice, who wrote the opinion in a 1974 case called Hamling vs. United States. It stresses "the difficulty in formulating uniform national standards of obscenity" and says a "juror sitting in obscenity cases (should) draw on knowledge of the community ... from which he comes."
"I don't see how we could reach a different conclusion for obscenity," Justice Scalia said on Wednesday.
The court asked the ACLU lawyer, Beeson, whether she believed that Congress could enact any anti-Internet-porn law that would pass constitutional muster.
Beeson said that perhaps a law that "just applied to websites selling something" that was primarily sexual material might be closer.
But Justice John Paul Stevens wasn't satisfied. He shot back, "You're suggesting to me that there's no less restrictive alternative" that Congress could try.
Congress enacted COPA after the Supreme Court ruled unanimously against the Communications Decency Act, the first law aimed at stamping out online indecency.
The Supreme Court has until the end of the term, in late June or early July 2002, to rule on this case.
