The Supreme Court points its browser to

The Supreme Court points its browser to

The Supreme Court points its browser to

Oral argument from the court.
Nov. 28 2001 5:58 PM

First, a disclaimer. There are links to pornographic materials in this dispatch. If you are the parent or legal guardian of small children, do two things immediately. Send me your name and credit card number. And follow  this link and don't come back. Slate can't afford the criminal penalties under the Child Online Protection Act (COPA, to its friends) should the Supreme Court decide it's constitutional.


In order to understand what's at issue in Ashcroft v. ACLU, it's important to clarify what isn't. COPA represents the U.S. Congress' second attempt to regulate online porn as it relates to children. Its first attempt—a 1996 statute titled the Communications Decency Act—was unanimously invalidated by the U.S. Supreme Court in a 1997 case called Reno v. ACLU. In the wake of that case and using the ruling as its road map, Congress re-drafted the law more narrowly, so that it now criminalizes any individual or entity who makes any communication "for commercial purposes" on the World Wide Web that is "harmful to minors." Penalties can include prison time and thousands of dollars in fines.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Unlike the doomed first version, COPA defines "harmful to minors" as material that "the average person, applying contemporary community standards, would find ... is designed to pander to the prurient interest." The material also needs to be sexual (under the legal definition of obscenity) and must, taken as a whole, "lack serious literary, artistic, political, or scientific value for minors."

To paraphrase genius late comedian Bill Hicks, under that definition of obscenity, pretty much every commercial on television would be illegal. Certainly that terrifying Britney Spears commercial—the one with Bob Dole and the dog—would probably be harmful to minors. I know a small part of me dies every time I see it. But the only question for the court today is what to do if the good folks of, say, Provo, Utah, find Internet materials to be harmful to children. Because the "contemporary community standards" test, as set forth in COPA, doesn't specify which community. And the Internet allows Web access from Provo to Vegas and beyond. This is why the 3rd Circuit Court of Appeals upheld a lower court injunction, which has kept COPA from being enforced since the day after it was enacted. So, while lots of us can think of lots of reasons why COPA is stupid/necessary/brilliant/fascist/great, the court really only wants to discuss whether, as the 3rd Circuit held, the "contemporary community standards" test is constitutionally overbroad, since it would force every Web publisher to comply with Provo's community standards. (I don't mean to single out Provo, by the way; Justice Scalia actually singles out all of North Carolina today for the same purpose.)

To clarify, let's recall that all obscene speech can constitutionally be prohibited, after the seminal case of Miller v. California, and that after Ginsberg v. New York (no relation) an even lower standard exists to determine what's obscene for children. That means there's a whole lot of smutty, dirty, graphic material that is pornographic but not obscene, or obscene for children and not for adults, that hasn't been blocked on the Internet. The question is how to block it for children without banning it for adults.


While today's oral argument features two of the finest oral advocates I have ever seen, bar none (pardon the pun), namely Solicitor General Ted Olson and the ACLU's Ann Beeson, it's worth noting that each of them manages to annoy the bench in the same subtle sense: Olson tends to underrespond to the justices' questions, making the point over and over that the act is constitutional because Congress explicitly followed the blueprint laid out by the court in the first Internet porn case. Beeson, on the other hand, is inclined to overrespond, and when the justices ask her narrow questions about the community standards issue, she launches into a litany of the 1,001 ways COPA is otherwise unconstitutional.

Justice Kennedy opens up the discussion of whether "community standard" actually means something more like "national standard," and Olson replies that "community standard" is not necessarily a geographic limitation but more like an "average adult" standard. Justice Souter objects, since the words "average person" are already in the statute, so community standard must mean something more. Olson replies that Congress was only trying to follow the guidance offered by the court in ACLU 1.

Souter wonders if "community standards" is merely a "belt and suspenders" definition, and again, I call a timeout. I have heard this phrase—"belt and suspenders" three times in three days and never before. Fraysters, help me out, what does it mean and is the court being paid to rocket it into common parlance?

Olson then sells out regionalists everywhere by contending that in an era of "national television, national media and national communication" Congress does not believe that there is a substantial variation in what various average adults across the country would deem harmful to minors.


Kennedy follows with a line of questions about whether California juries can be made to consider community standards in other parts of the country. Justice Breyer suggests that maybe the way to resolve this case is to assume that when Congress said "community standards" it actually intended for a national standard. (In point of fact, Congress said "community standards" because that has been the constitutional yardstick in the historical dirty magazine cases, which really could have been judged in reference to what your neighbors thought. There are no neighbors on the Internet.)

Here is where Scalia suggests that the proposed "national standard" is absurd because "what," he asks, "does someone raised their whole life in North Carolina, know about Las Vegas?" They probably don't even know to split eights and aces, for heaven's sake.

Justice Ginsburg wants to know if "serious artistic value" is also to be measured using community standards. And Olson responds by arguing, again, that Congress framed the act using the court's earlier guidelines, and then he makes a crucial argument about whose burden it is to protect kids from porn. The government rejects the ACLU's contention that it's the sole responsibility of parents to protect their children. The pornographers, he contends, "who have decided to pollute the spring from which we all drink" should take some responsibility for shielding children. He cheerfully points out that even just going to will lead you to offensive explicit pornography.

Ginsburg refers to a series of nudie pictures appended as exhibits in the case and asks whether specific photos shown in an art exhibit would pass government muster. Olson waffles long enough to run out the clock.


Ann Beeson is precisely the sort of oral advocate the majority of the court loves to hate. She's a woman, she's incredibly smart, shockingly liberal, and she talks at 4,000 words per minute. When she opens her argument with a defense of explicitly sexual writing posted on Salon(which happens to feature cover art today of a large-breasted male) she defends Salon as a legitimate magazine that should not be tarred with the brush reserved for pornographers. Scalia wants none of that. "If they're in the pornography business, they're pornographers," he says. "Whether or not they also do other things is irrelevant!"

(Whether or not Salon can possibly be criminally liable under COPA is a better question. If all their tasteful artistic erotica now requires a credit card and a login, they might well have an affirmative defense under the statute.) (Slate, by the way, arguably has no such defense against Scalia's "pornographers" claim, since we include links to tasteful artistic erotica smack in the middle of our family-friendly sports features.)

Beeson's argument is that if you give the most puritanical community standards a Web-wide veto, all sorts of art, useful educational materials, and medical information will be banned because "in some communities, any information about sexual pleasure to teen-agers is sinful." (Click here for the list of the 17 plaintiffs represented by the ACLU in this suit, to get a sense of how many scared Web sites are out there.) At this point, Beeson is reprimanded sequentially by Breyer, Souter, and Kennedy for refusing to answer a question. They want her to tell them whether the "community standards" provision can be rendered constitutional by renaming it "national standard." Beeson keeps wanting them to believe that the whole statute would be unconstitutional anyway.

Justice O'Connor gets in a few rounds over the definition of "commercial" Web sites, and Beeson makes the claim that one of her clients,, would be defined as "commercial" and pornographers for trying to sell photos by Andres Serrano. Beeson then argues that user-based blocking systems are less intrusive and more effective at blocking harmful materials.

The last volley of questions then comes from a clearly worried bloc of Justices Stevens, Souter, Breyer, and Kennedy who want to know if there is anything at all, according to the ACLU, that Congress can constitutionally do to at least block "teasers" (the free porn provided to lure you into pay porn sites). Because she represents the ACLU, Beeson must stick to her extreme guns, even though it kills her. "I have to argue it would be [unconstitutional]," she replies, "and you wouldn't have to believe me." The problem is, the majority of this court wants to be able to do something about little Jimmy and his penchant for XXX Web sites or at least about those teasers.

Olson wisely closes by taking what appears to be a moderate position in contrast. He's aware that this court wants to do something reasonable about harmful porn, and he makes COPA sound reasonable. He scoffs at the ACLU's "sky is falling" defense and argues that folks who go into the 7-Eleven and look at the dirty magazines behind the brown paper, all in front of a camera, no less, are not going to be deterred by the need to give a credit card to a porn site. It's a testament to his oral advocacy powers, that if you can put aside your fear of the people in Provo deciding whether Salon can run erotic stories or whether Tuesday Morning Quarterback can link to centerfolds, COPA almost sounds like a moderate, reasonable solution.