Last Tuesday, United States Supreme Court heard oral arguments from the Bush administration’s top Supreme Court lawyer, Solicitor General Theodore Olson, concerning why the Court should allow the Child Online Protection Act (COPA) to stand. The Bush administration argued that the amount of free porn on the Internet was something of an epidemic, justifying the government’s “compelling interest” to protect children from harmful material. The solution being offered by COPA is to hold Web site operators responsible for placing material that is deemed “harmful to minors” in online locations that are easily accessible by children.While COPA could do nothing to address the issue of free porn provided by foreign Webmasters not subject to American laws, and would likewise do little or nothing to curb pornography that is distributed freely through peer-to-peer file sharing networks and Internet newsgroups, the law has yet to be struck down as unconstitutional by the Supreme Court. A final decision in the COPA case is expected sometime between April and June.
Material that is considered “harmful to minors” is an entirely different issue than material that is found to be legally obscene. While obscenity is illegal to distribute even to adults, material that is merely “harmful to minors” could in theory include content as tame as Playboy Magazine. Yet despite the fact that the COPA case is concerned solely with materials that fall into the “harmful to minors” category, Justice Sandra Day O’Connor still used the hearing as an opportunity to express her support for obscenity prosecutions against adult Web site operators.
“With such a vast array of sites, there are so few prosecutions,” O’Connor said. “It’s just amazing.”
Olson was quick to point out that the Bush administration has already brought on 21 indictments in the last two years against Webmasters and others who were accused of distributing obscenity.
O’Connor has left many wondering how obscenity prosecutions could possibly impact the issue of free but constitutionally protected pornography on the Internet in places where it is accessible to children. While obscenity prosecutions might frighten fringe hardcore producers into self-censoring themselves entirely, O’Connor offered no compelling explanation as to how obscenity prosecutions would solve the problem that COPA attempts to address – keeping children away from legal adult erotica.
According to First Amendment attorney Larry Walters of FirstAmendment.com, O’Connor’s suggestion shouldn’t come as a surprise. “O’Connor’s comment, while perhaps shocking to the adult industry, represents the view of a large segment of the judiciary, I suspect,” says Walters. “Judges don’t have as much problem recognizing obscenity as we’d like to hope, and there is a concern out there relating to the perceived lax enforcement of the nation’s obscenity laws.”
It does appear clear that the Bush administration would have a friend in the Supreme Court should it launch the expected legal assault later this year on the adult entertainment industry. While Chief Justice Rehnquist, Justice Scalia and Justice Thomas have all clearly sided with anti-pornography efforts in the past, O’Connor is somewhat of a swing voter. With O’Connor clearly on the side of obscenity prosecutions, that means the Bush administration needs only one out of the remaining five Justices to back obscenity laws and any legal challenges to these laws would be all but decided.
O’Connor has shown political support for the Bush administration in the past. A former Republican majority leader in the Arizona State Senate, she was appointed to the Supreme Court by Republican President Ronald Reagan in 1981. Newsweek magazine reported that during an election night party in 2000, O’Connor audibly cried out “this is terrible” when the state of Florida was first called for Gore, and that her husband then explained to friends that O’Connor was considering retirement and didn’t want to retire while a Democrat was in office because she wanted a Republican president to appoint her successor. O’Connor was also one of two “swing votes” in the 5-4 decision that led to George W. Bush’s victory over Al Gore.
If not for political purposes, then it is unknown at this point why Justice O’Connor used the COPA case to push for obscenity prosecutions against adult Web site companies, but her inference was clear, and her message was likely received. Now adult Webmasters can only sit back and wait to see if Attorney General Ashcroft and the rest of the Bush administration’s Justice Department heed O’Connor’s advice.
“A sitting Supreme Court Justice has now gone on record asking why the industry has not been prosecuted given the ‘vast array’ of potentially illegal sites,” says Walters. “If the feds needed any more reason to launch an assault on the industry, they now have it.”
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