Washington The Supreme Court, struggling Wednesday to find a balance between protecting children from online smut and preserving free speech, questioned whether a sweeping national standard could rule the unruly Internet.
There can be no objective nationwide standard to judge what is damaging for youngsters but might have artistic, educational or other value for adults, said American Civil Liberties Union lawyer Ann Beeson.
"A national standard would be an exercise in futility," she said.
The court is expected to rule next year on the Child Online Protection Act, Congress' latest attempt to shield children from sexually explicit pictures and other material readily available to anyone with a computer. The court struck down an earlier version of the legislation as an unconstitutional limit on free speech.
At issue this time is whether it is possible to wall off Internet content deemed "harmful to minors" by using what Congress called "community standards" of what is appropriate for youngsters and teen-agers to see.
The ACLU claims that community standards would end up meaning the standards of the most conservative community in the country, because the Internet spans all communities, permissive, conservative and in-between.
The government claims that community standards are workable online, because reasonable people generally agree about what should be out-of-bounds.
Several justices seemed skeptical.
"Would it be possible for a North Carolina jury ... to decide whether (online material) would offend the standards of Las Vegas or New York City?" Justice Antonin Scalia asked.
Justice Anthony M. Kennedy asked whether a jury in California should take into account the views of an expert witness brought in from New York.
"Jurors are allowed to draw from their experience, which necessarily comes from the community in which they reside," replied Solicitor General Theodore Olson, the government's top Supreme Court lawyer.
A federal appeals court in Philadelphia barred enforcement of the 1998 law because it said online community standards is a concept so broad and vague that it is probably unconstitutional.
The law makes it a crime knowingly to place objectionable material within a child's easy reach on the Internet. Violation can carry fines or six months in jail. The act requires commercial Web sites to collect credit card numbers or access codes as proof of age before allowing Internet users to view online material deemed harmful to minors.
The law is narrower and more specific than the 1996 Communications Decency Act, which the Supreme Court struck down as unconstitutional in 1997.
Congress got it right this time, Olson argued Wednesday.
The law would put Internet pornography and other explicit material on the same footing as material offered for sale in bricks-and-mortar bookstores or convenience stores, Olson said. Children are not supposed to see pornography in such establishments, so it comes wrapped in paper or is displayed behind a screen.
The ACLU claims that Congress' second attempt is just as flawed as the first, in large part because it remains unclear who would draw the line between appropriate and inappropriate material and how it would be drawn.