PHILADELPHIA After years of legal wrangling, Web site publishers and free-speech advocates argued in court yesterday that a law Congress passed to protect children from online pornography was fatally flawed.
Salon.com, Nerve.com and other plaintiffs said the 1998 Child Online Protection Act would likely criminalize legitimate material they publish, from sexual-health information to erotic literature to news photographs of naked prisoners tortured at Abu Ghraib.
The Justice Department argues that it is easier to stop online pornography at the source than to keep children from viewing it, inadvertently or otherwise.
The law, signed by then-President Clinton, requires Web sites to get credit card information or some other proof of age from adults who want to view material that may be considered “harmful to children.” It would impose a $50,000 fine and six-month prison term on commercial Web site operators that allow minors to view such content, which is to be defined by “contemporary community standards.”
The American Civil Liberties Union, which represents the plaintiffs, argues that filters are a more effective way of policing the Internet. It notes that the law would not regulate any material posted overseas.
The plaintiffs also argued that the term “community standards” is too vague.
“As a parent, I know that what’s fine for my daughter may not be appropriate even for some of her friends,” testified Joan Walsh, editor-in-chief of Salon.com.
Eric Beane, a government attorney, acknowledged that it is tempting to defer to families on the question of what is appropriate for children, but said the patchwork of filters used by parents don’t work.
“The evidence will show that a shocking amount of pornography slips through to children,” Beane said in opening statements.
The nonjury trial in front of Senior U.S. District Judge Lowell A. Reed Jr. opened yesterday and is expected to take about a month.
The 1998 law has yet to be enforced. The U.S. Supreme Court has twice upheld preliminary injunctions that prevented the government from enforcing the law until a trial to determine the act's constitutionality can be held. (See 2002 ruling Ashcroft v. ACLU and 2004 ruling Ashcroft v. ACLU, II.)
The plaintiffs, technology experts and even Supreme Court Justice Anthony M. Kennedy have expressed concerns that the law has already been surpassed by technology and the growth of the Internet. Kennedy noted, for example, that filters can block Web material posted offshore, but the disputed law cannot control what foreigners post online.
The government “will argue that parents are too stupid to use filters. It’s an insulting argument, and it’s wrong,” ACLU attorney Chris Hansen said in his opening statement.
Nerve.com founder Rufus Griscom said requiring viewers to submit a credit card or jump through other hoops before viewing the site would cut traffic and advertising revenues to disastrous levels.
“Based on what I’ve heard today, I think moving overseas would be a possibility,” Griscom testified.
In preparing for its defense of the law, the Justice Department sought internal files from search engine companies and Internet service providers. Google Inc. refused one such subpoena for 1 million sample queries and 1 million Web addresses in its database, although it primarily cited trade secrets, not privacy issues.
A federal judge in California sharply limited the amount of information Google had to surrender.