WASHINGTON -- Online pornographers, smut-peddlers, and purveyors of fine flesh, look out.
On Monday, the U.S. Supreme Court reopened the question of how age-old laws against obscenity should apply to the Internet.
The justices' views became public in a case involving erotic websites deemed unsuitable for minors but acceptable for adults. In an 8-1 decision, they voted to send the Child Online Protection Act (COPA) back to an appeals court for additional proceedings.
In doing so, the justices also showed what they felt about existing obscenity laws that prohibit distributing hardcore photographs and videos to adults. Nearly all states have obscenity statutes on the books, as does the federal government.
So far, the U.S. Justice Department has announced precisely zero obscenity prosecutions of Internet sites, much to the dismay of anti-porn advocates, who have spent years kvetching about the continued lack of lengthy prison terms for online pornographers.
It's certainly not due to the Bush administration's principled objections -- or concerns about the free speech implications of a wave of prosecutions. Attorney General John Ashcroft reassured Congress last year that he was "concerned" about sex sites featuring obscene images and videos.
Probably the best explanation is that the DOJ's team of porn-prosecutors -- a k a the Child Exploitation and Obscenity section -- have been waiting to see what the Supreme Court thought of the idea.
Now they know -- and it's hardly clear. The justices unanimously decided to block prosecutors from enforcing the COPA law, at least temporarily, but they couldn't agree on the future of the legal concept of "community standards" that's used in smut-prosecutions.
In Monday's COPA decision, the justices puzzled over whether the law's reliance on "contemporary community standards" was sufficient -- and what the concept means when applied to the global Internet. Both COPA and existing obscenity laws outlaw certain types of erotic material with no scientific, literary, artistic, or political value that is offensive to local "community standards."
But what does that mean when the community is virtual? Can a sex site hosted in Las Vegas or San Francisco be prosecuted by a U.S. Attorney in a far more conservative jurisdiction -- in, say, Tennessee?
The starkest warning came from Justice Clarence Thomas, who wrote the plurality opinion and saw no problems with the idea: "If a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the nation."
In fact, said Thomas, "If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities."
What that means in practice is anyone's guess. Thomas seemed to be talking about requiring websites to register visitors -- perhaps asking for a credit card tied to a specific zip code -- before they would display sexually explicit material.
Not all the justices seemed so content with the idea.
"To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the nation," Justice Stephen Breyer said. "The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious."
Breyer said Supreme Court precedents upholding obscenity laws were not necessarily a good fit, since they dealt with cases such as physical mail and dial-a-porn in which the porn distributor knew the zip code or area code of the recipient. In the Amateur Action BBS prosecution, for instance, an appeals court upheld obscenity charges in part because the BBS operator contacted an undercover postal inspector by telephone.
Justice Sandra Day O'Connor went even further, noting that whatever her colleagues decide in the COPA case will have implications for obscenity prosecutions. She admitted "the possibility that the use of local community standards will cause problems for regulation of obscenity on the Internet, for adults as well as children, in future cases."
"In future facial challenges to regulation of obscenity on the Internet, litigants may make a more convincing case for substantial overbreadth," O'Connor said. "Where adult speech is concerned, for instance, there may in fact be a greater degree of disagreement about what is patently offensive or appeals to the prurient interest."
About the only thing the court could decide on was that the Third Circuit Court of Appeals erred in relying too much on the "community standards" controversy when overturning COPA as unconstitutional. Only Justice John Paul Stevens thought that the problems with "community standards" were by themselves sufficient to ditch COPA.
"In the context of the Internet, however, community standards become a sword, rather than a shield," Stevens wrote in his lone dissent. "If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web."
An unrelated lawsuit is challenging federal obscenity laws as unconstitutional.
