by TChris

In preparation for his Supreme Court argument yesterday, Solicitor General Ted Olson spent part of his weekend searching for free porn on the internet. It should not surprise most readers to learn that his exploration was rewarded, although he was not prepared to say whether every website returned by his search engine was actually obscene. Nor was Justice Sandra Day O'Connor surprised to learn that there is porn on the internet; she asked why Olson was in court defending new anti-porn laws when no serious effort has been made to enforce old ones.

At issue is the Child Online Protection Act, enacted in 1998 after the Supreme Court declared unconstitutional the Communications Decency Act.

The new law prohibits commercial Web sites from publishing material "harmful to minors" unless the site can show that it has made good faith efforts — requiring a credit card, for example — to keep out all Web surfers younger than 17. Violators could be fined as much as $50,000 and spend six months in jail, with higher penalties for repeat offenders.

The Third Circuit declared the law unconstitutional last year, but the Supreme Court instructed it to reconsider its decision. The Third Circuit again struck down the law on various First Amendment grounds. Joining the American Civil Liberties Union in this second trip to the Supreme Court were "a broad coalition of Web sites, booksellers and civil liberties organizations, as well as online stores like Condomania and online publications like Salon." Those entities worry that the law's overly broad coverage will chill their ability to engage in frank discussions of graphic subject matter. They also worry that their content will not reach interested members of their potential audience who may be reluctant to surrender credit card information as proof of age.

Those concerns are legitimate. As ACLU lawyer Ann Breeson said in her argument, "The government can't burn down the house to roast the pig."