Hearings End in Online Pornography Case
PHILADELPHIA — A federal online pornography law will either unconstitutionally chill
free speech on a variety of commercial Web sites or spur the creation of sensible screens
between children and sites that exist to sell pornography.
Those were the opposing views expressed Wednesday during the final day of hearings in
United States District Court here to decide whether the new law, the Child Online
Protection Act, should be blocked by a preliminary injunction.
Judge Lowell A. Reed Jr. had asked both sides to be prepared to respond to a list of 19
questions he had regarding the case. And in their answers, lawyers continued to try to
build their cases for or against the law.
Ann Beeson, a lawyer for the American Civil Liberties Union, which is fighting the law,
said that the statute would require free Web sites containing certain sexually explicit
material either to eliminate that content or risk driving viewers away through registration
or age-verification mechanisms. Therefore, she said, the law “creates a very strong
financial disincentive to create or publish work,” adding that there is “a risk of a chilling
But Justice Department lawyers, defending the law, argued that its language is clear
enough to apply only to sites that exist to promote pornography. Furthermore, said one of
the lawyers, Rupa Bhattacharyya, “The First Amendment allows you to speak freely; it
does not necessarily guarantee you a profit to speak.”
The law requires operators of commercial Web sites to bar those under 17 years of age
from any sexually explicit material defined as “harmful to minors.” Violators face penalties
of up to 6 months in prison and $50,000 in fines.
Judge Reed is expected to issue a decision sometime Monday before the midnight
expiration of a temporary restraining order that has blocked the law from being enforced.
The law was signed last October by President Clinton, but it has never gone into effect.
In response to one of the judge’s questions, Christopher A. Hansen, another lawyer for the
ACLU, which is challenging the law with 16 other groups and businesses, indicated that
the statute’s wording could put at risk all kinds of businesses not engaged in selling
pornography. The Justice Department has said that only sites that produce material
“harmful to minors” in the “regular course of business” would be subject to the law. But
Hansen argued that this phrase could apply to any work produced by a Web publisher
regardless of whether it is a common endeavor for the site.
The point is significant because many of the plaintiffs in the case are online news
operations, booksellers, art galleries or other sites that do not exist to post sexually
explicit materials but, on occasion, might. A gallery, for example, could well post an image
of a nude or a news organization may have posted the report by the Whitewater
independent counsel, Kenneth Starr, with its sexually graphic passages. “We believe it [the
regular course of business] refers to a record made as part of the business,” Hansen said.
Karen Y. Stewart, a Justice Department lawyer, insisted, however, that the term applied to
businesses that regularly produce material “harmful to minors.” “The character of its
business is defined by communications of that sort,” she said.
The lawyers also disagreed about a number of other fine points. Hansen, for example,
argued that the law could apply to links and not just content or images on Web sites;
The judge, whose measured tone throughout the six days of hearings has betrayed little
indication of which way he might be leaning, also wondered why the words “educational”
and “medical” were omitted from the definition of “harmful to minors.”
Under the law, sexually explicit material is considered harmful to minors if it meets all
parts of a three-part test. The third part is that the content must lack “scientific, literary,
artistic, or political” value for minors. “Is sexually explicit educational or medical
information that is not scientific, literary, artistic, or political similarly excluded?” Judge
Reed wrote in his questions to the lawyers.
Hansen said that the omission is significant, because many state “harmful to minors”
statutes pointedly include the two extra words. Bhattacharyya insisted, on the contrary,
that educational and medical material would be protected under the broader meaning of
“scientific, literary, artistic, or political” content.
The hearings, originally scheduled to last three days, in fact went on twice as long. The
judge, in closing the hearings Wednesday morning, characterized the case as one of “major
importance as a nationwide statute.” In deciding the case, he said that he would “carry the
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