Explain this to me: The Supreme Court of the United States says the First Amendment protects the right of hard-core pornographers to lure children into “adult” Web sites where they will be exposed to every manner of deviant sexual behavior? Yet that same court says the First Amendment restricts the right of groups critical of this decision from airing ads at election time that oppose presidential candidates who might appoint similarly disposed judges.
As incomprehensible as it might seem, this is the state of First Amendment jurisprudence as the current term of the Supreme Court comes to a close.
On Tuesday, the court upheld a lower court decision involving the Child Online Protection Act (COPA), which Congress passed and President Bill Clinton signed in 1998, to penalize commercial Web sites that do not try to block access to sexual material deemed harmful to minors.
An appeals court found the law unconstitutional in 2000, and it has been up on review by the Supreme Court twice since. The majority of the court in this latest decision said that COPA probably violates free-speech rights of adults who want access to porn but sent the case back to the 3rd Circuit to see if new technologies might make it possible to restrict children’s access while not making it too difficult for pornoholics to get their fix.
In his dissent, Justice Stephen Breyer makes clear that the law only restricts access to material that has no legal protection itself — that is, material that meets the court’s own definition of obscene. What’s more, the law simply requires commercial Web sites peddling smut to verify that those who visit the site are adults by proving their age through the use of a credit card or an adult personal identification card system — hardly a major burden.
Is it really a dire threat to the First Amendment to ask visitors to commercial Web sites to give a credit card before they get a peek at the “adult” goods? After all, that’s the way the sites make money in the first place. The only reason they offer “free” samples is to try to arouse customers enough so that they will pay for more.
In summing up his arguments against the majority opinion, Justice Breyer notes, “My conclusion is that the Act, as properly interpreted, risks imposition of minor burdens on some protected material — burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography. There is no serious, practically available ‘less restrictive’ way similarly to further this compelling interest.”
It’s bad enough that a majority of the court rejected this reasoning, but it is indefensible that the same court earlier this session made it more difficult for Americans to exercise their legitimate First Amendment rights to speak out against candidates who would appoint like-minded judges. In its December 2003 decision in McConnell v. Federal Election Commission, the court ruled that the McCain-Feingold campaign finance law could restrict the right of interest groups to run ads that mention a candidate’s name within 60 days of an election unless the ads are paid for entirely by small donations. So any group that has problems with Tuesday’s ruling had better be careful about putting ads on the air this fall to support the election of federal candidates who might appoint or confirm judges who differ with this court.
But isn’t political speech — not pornography — exactly what the Founders were trying to protect when they added the First Amendment to the Constitution? Talk about obscenity, this court’s convoluted rulings on free speech come awfully close.