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The New York Times

Hearings End in Online Pornography Case

By PAMELA MENDELS

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

effect on free speech.”

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;

Bhattacharyya disputed this.

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

burden” that the case requires.

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