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The Web's only profitable business in the crosshairs

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The US Supreme Court heard arguments Wednesday on the constitutionality of the Child Online Protection Act (COPA), which Congress passed in 1998 to purge the Internet of materials "harmful to minors." The Act was ruled unconstitutional by the Third US Circuit Court of Appeals in Philadelphia last year.

The COPA would make it a criminal offence for commercial Web sites to display any material that would be perceived as harmful by "an average person, applying contemporary community standards" unless access controls were employed to keep curious sprouts away from it.

While industrial chemicals in drinking water can easily be demonstrated 'harmful to minors,' deciding what sorts of literature or images might be detrimental, with the exception of the most obvious filth, is strictly a matter of opinion. For example, in Oklahoma sympathetic discussions of homosexuality might be regarded as Satanic, whereas in Massachusetts they may be required as part of a child's basic social catechism.

Thus the appellate court ruled that "because the standard by which COPA gauges whether material is 'harmful to minors' is based on identifying 'contemporary community standards', the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech."

And it was on this issue of which community gets to make the call that the Supremes appeared to hang as well.

"Doesn't any jury necessarily apply the standards of its own community?" Justice Scalia inquired. "What does a juror who has spent his whole life in North Carolina know about Las Vegas?"

Justice Breyer wondered if 'community standards' in the context of the Internet might mean something elusive like a national standard.

American Civil Liberties Union (ACLU) lawyer Ann Beeson said any effort to apply a national standard "would be an exercise in futility" because the least tolerant, most puritanical segment of society would have to represent the default, and a great deal of adult speech would be chilled.

The COPA makes an exception for material which possesses "serious literary, artistic, political, or scientific value for minors." This isn't too far from real-world regulations; it's just the 'for minors' part that makes one uncomfortable. Surely there are literary, artistic, political and scientific materials that are not appropriate for children but quite so for adults. One has to worry that the COPA could be used to purge any content not suitable for children, regardless of its merit for adults.

If the Supremes affirm the appellate decision, the case will be closed until the prudes in Congress inevitably run up some new and equally preposterous assault on the First Amendment. If they vacate the ruling, then the case goes back to the appeals circuit where other constitutional issues may well be raised, and the cycle may begin again.

The Nine Immortals will hand down their decision some time before the end of summer. ®

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