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A decent proposal

Politics | With the law that protects children from online porn on the ropes, John Ashcroft may be the last defense for online child safety

Issue: "Kerry picks Edwards as VP," July 17, 2004

Estimated number of pornographic websites: 4.2 million.

Number of individual pornographic web pages: 372 million.

Value of keeping kids safe from internet pornography: Priceless.

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A price too high, apparently, for the U.S. Supreme Court. The court on June 29 ruled 5-4 that the Child Online Protection Act (COPA), which requires commercial sex sites to verify every user's age, likely violates adults' free-speech "right" of unfettered access to online smut -- and is therefore likely unconstitutional. The justices bounced COPA back down to a U.S. district court for a new trial, where, legal analysts say, it stands almost no chance of survival.

That's a bad sign for the future of online child safety. COPA, which marched to bipartisan passage in 1998, is widely regarded as regulation with a light touch. If, as Justice Stephen Breyer pointed out in his June 29 COPA dissent, the high court majority disdained even its scant restrictions on online porn, it is doubtful they would accept any law Congress might offer up.

That means parents may now hold just one hope that their government might rein in internet pornographers who go gunning for kids: aggressive enforcement of existing federal anti-obscenity laws.

On July 7, Rep. John Sullivan (R-Okla.) sent a letter to House colleagues urging them, in light of the COPA ruling, to join him in pressing for passage of House Concurrent Resolution 298. That measure puts the responsibility for online child safety squarely on the shoulders of Attorney General John Ashcroft, calling for "vigorous enforcement" of federal statutes banning obscene materials.

"The [Supreme] Court seems to be saying that pornographers have freedom of speech, but parents do not have an equal right to protect their children from pornographers," Rep. Sullivan wrote. "Where does this leave us? It leaves us with enforcement of federal obscenity laws -- the only way to stop these pornographer/predators from luring children to their Web sites."

Online smut purveyors are alarmingly good at that, according to InternetFilterReview.com, a website that rates porn-blocking software. At last count, 26 children's character names -- from Barbie to Pokemon -- were linked to thousands of porn sites. The average age at which children are exposed to online obscenity is 11. And 80 percent of 15- to 17-year-olds with internet access admit to multiple exposures to hardcore porn.

But a May 2002 National Research Council report stated that "aggressive enforcement" of anti-obscenity statutes can help reduce children's exposure to certain kinds of online porn. Now, Rep. Sullivan and 97 co-sponsors, including eight Democrats, are wondering why HCR 298 has for nine months languished in the in-box of House Judiciary Committee Chairman Jim Sensenbrenner (R-Wis.), even though a similar measure in November sailed through the Senate unopposed.

Meanwhile, pro-family groups are wondering why John Ashcroft's Justice Department hasn't used laws already on the books to put major sex sites out of business.

"John Ashcroft has been a failure at prosecuting obscenity," said Pat Trueman, senior legal advisor for the Family Research Council, and former head of the Child Exploitation and Obscenity Section at the Department of Justice (DOJ). "Today, you can't name a single major internet pornographer who's been prosecuted" under Mr. Ashcroft's leadership.

With existing laws getting scant use, family activists hoped the DOJ would be more willing to wield the legal club provided by COPA. The act, passed in 1998, requires commercial sex sites to verify every user's age using a credit card or other age-confirming data. COPA takes aim at porn-purveyors' wallets, slapping violators with a $50,000 fine.

But the ink had barely dried on President Clinton's signature before the ACLU filed a First Amendment suit and won a temporary injunction against enforcement of COPA. Since then, federal courts have struck the law down twice, leading to this latest Supreme Court review, in which the court was asked to rule on the merits of the lower court's injunction, and not on the constitutionality of COPA itself.

But the justices couldn't help addressing that topic anyway. Their opinion -- that COPA likely violated the First Amendment right of adults to access obscenity without having to prove that they are indeed adults -- shocked pro-family and anti-porn activists for several reasons.

First, the ruling trampled the court's own decency precedents, including a bedrock ruling from 1973. In Miller vs. California, the court ruled that "to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom." The court also recognized that protecting "decent society," "family life," and the "social interest in order and morality" are among the legitimate governmental interests at stake in stemming the tide of obscene materials.

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