Porn on Trial
The ACLU battles the Justice Department over the Child Online Protection Act. But web porn isn't going anywhere.
It's hard to know who to pity more in ACLU v. Gonzales, the latest round in an eight-year struggle to kill the Child Online Protection Act (COPA): Chris Hansen, lead counsel for the ACLU, who has to build a case against a law so monumentally ineffectual, so pathetically dated, and so obviously unconstitutional that it must be hard to know where to start arguing; or his counterpart, Department of Justice lawyer Eric Beane, who is in the unfortunate situation of having to defend the Act. Beane, at least, seems to have his strategy down: He simply advises the court not to think too hard. "It's important not to let this trial become a purely intellectual exercise," he said in his opening statement last week. "It's important not to become emotionally detached from the issue."
COPA was passed in 1998, but has been in legal limbo since its inception. The law has never been executed due to challenges, and most likely never will be. As written, the law requires all commercial distributors of "material harmful to minors" to restrict access to their sites. Sites represented by the ACLU, including Nerve (which has fantastic daily blog coverage of the trial), Salon, and Urban Dictionary, say requiring credit card or database verification would kill their traffic, slash their ad revenue, and put them out of business. The litigating started last week at federal court in Philadelphia, and is expected to last four weeks.
The Department of Justice claims sites like Salon and Nerve would be safe under COPA, and COPA is so vague that it is indeed unclear whether any of the plaintiffs' content would fall under it— which is very much the ACLU's point. What counts as "harmful to minors?" According to the statute, that would be material that, in accordance with "contemporary community standards" appeals to "the prurient interest." Lewd depictions of "genitals or post-pubescent female breast" are specifically proscribed, but nothing concrete is excluded from COPA's mammoth reach. Material refers not just to images, but any article, recording, or communication. Publishers may be unsure of where the line is, given that obscenity is subjective, but the penalty for getting it wrong is up to $50,000 or 6 months in jail.
COPA is a less than impressive piece of legislation, but as pure symbolism, it is masterful, a perfect summation of the vast wasteland that is the intellect of the typical U.S. congressman. Part sex-panic, part tech illiteracy, it's as if former Rep. Mark Foley and Sen. Ted Stevens (R-Alaska) came together to create a kid-safe series of tubes. The law assumes that internet-savvy minors will be baffled by credit cards, that kids determined to see smut will be routed by a registration page, and that the internet is a centralized network waiting for marching orders from the Department of Justice. But COPA's most crucial flawed assumption is that the United States is the only country on earth.
The law has nothing to say about the other porn on the internet, the smut that comes to us from mysterious, far-off places beyond Washington's control (not that they haven't tried). This whole, rest-of-the-world issue proved awkward on the first day of the trial. In his opening statement, Beane planned to use six hardcore images plucked from the vast array of internet smut. Hansen, in an opening statement prior to Beane's, pointed out that four of the six were from overseas sites not subject to American censorship. "They are scary images, unpleasant images," Hansen conceded, "but they won't affected by COPA at all."
The ACLU wants to prove that the law isn't "narrowly tailored," which it clearly is not, and will thus suppress all sorts of valuable speech. To that end, COPA critics will argue that naked pictures and racy speech are good for us: COPA would criminalize online conversations about sexual health and prevent the dissemination of photos like those of Abu Ghraib. Porn proliferation is also correlated with low rape stats: a tool, some argue, for channeling aggression. The Urban Dictionary's definition of "teabagging" (discussed on day six of the trial) apparently holds epic social value. "I hear a lot from teachers and parents who have used Urban Dictionary to understand what their kids are saying.," Aaron Peckham, the dictionary's owner and founder, said in a recent interview. "I think many of the definitions… do a lot to help people laugh, and understand each other."
But there is a problem with pretending that a world with COPA is a world without intergenerational conversation, or a world without the healing powers of porn. To the average web surfer, the post-COPA world will look a lot like the pre-COPA world; The legislation itself is so poorly conceived that it will never achieve its short-sighted aims. Content that proves popular will simply come from elsewhere. A victory for COPA would screw over American content providers, along with anyone interested in preserving his First Amendment rights. For curious kids and passive porn connoisseurs, the landscape will remain largely unchanged.
But it's a scary landscape indeed, if you take the DOJ's word for it. Beane describes a world in which improbably innocent minds are plagued by the unwelcome specter of wanton nakedness. The horror stories Beane told include a 14 year old boy who typed in "Say No to Drugs" and was faced with pictures of people using drugs naked. And then there's the 14-year-old girl with the dog. "I was just very bored," Beane said in her words, "I typed in my dog's name and pictures of naked girls just kept popping up. I tried closing the screen and the pop-ups kept coming." (ACLU attorney Ben Wizner commented on his blog: "I couldn't help wondering what the poor girl had named her dog.")
The ACLU's attorneys are big on parental control and the use of private filters, which is surely a more sane way to keep a kid from too much of the wrong kind of information. But the DOJ is no doubt correct in retorting that some parents won't use them, and some kids will nevertheless be subjected to the full force of the internet, naked drug abuse and all. "A shocking amount of pornography slips through these filters and into the hands of children," Beane argued early on in his statement. Later, he warned that exposure "seriously damages a child's development. It can affect a child's daily life and a child's future."
If that's true, Beane should be able to show the court a shocking number of seriously damaged kids, a generation warped by porn. But the real lesson,after eight years of a toothless COPA may be that kids can gawk at a female breast, or even a lewd, post-pubescent one and live to tell the tale. By most measures, kids in the post-web-porn America are doing just fine.
"The stakes could not be higher," Beane told the court last week. But for kids, at least, the stakes at this point couldn't be lower. The future of porn, and access to it, won't be decided in Philadelphia or Washington. In this crazy world of sex-charged pop ups and naked drug use, that should be some measure of comfort: It may be harder to know what kids are up to, but it's easier not to care what Congress is.
Kerry Howley is an associate editor for Reason.