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Deemed Obscene

WASHINGTON -- Thanks, but no thanks. We don't need new laws to bag members of the growing Internet pedophile community.

That's what the FBI told the Senate Commerce Committee four months ago, pointing to its impressive arrest book for support.

"We have ... arrested thousands of predators who would use the Internet to entice children into exploitive situations," James Burris, deputy assistant director of the FBI's Criminal Investigative Division, said.

Well, that's not good enough, Attorney General Alberto Gonzales declared Thursday.

The nation's top cop signaled that the Bush administration is prepared to launch an all-out First Amendment assault on the Internet during its final two-and-a-half years in office.

Lumping protected free speech in with the already illegal trade in child pornography -- online or offline -- Gonzales proposed new laws, including one to "prevent people from inadvertently stumbling across pornographic images on the Internet."

Note he did not say "child pornographic" images.

In a Department of Justice (DoJ) press release that followed Gonzales's remarks, the DoJ stated it was interested in going after the "scourge" of child porn and "obscenity on the Internet."

Child pornography is one thing, but your general run-of-the-mill obscenity, tawdry though it may be, is quite another. The Supreme Court, after all, has already decided pornography is protected free speech.

It's not as if the Bush administration isn't already actively engaged in trying to change the law through its quixotic defense of the Child Online Protection Act (COPA), the 1996 law that the Supreme Court has twice booted back to the lower courts.

COPA would make it a crime for any for-profit Web site to display material that is "harmful to minors." To avoid jail time and/or considerable fines, the Web site operator must pull the material even to adults or institute adult access systems.

As you might imagine, what's harmful to minors is an extremely legal sticky wicket since much of the definition is based on "prurient interest" as judged by the average person applying contemporary community standards.

On the Internet, just which average person from what community will make that decision?

"Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people," the Supreme Court ruled two years ago.

"To guard against that threat, the Constitution demands that content-based restrictions on speech be presumed invalid, and that the government bear the burden of showing their constitutionality."

The justices said the Bush administration fundamentally failed in that task, particularly when alternatives such as filters might work better. Instead of redrafting the law, the White House has now set out to prove filters don't work, preferring prison sentences to technological solutions.

To prove that dubious scenario, the DoJ was prepared to trample on your privacy rights, demanding that the search industry turn over voluminous data on their customers so the government could determine the effectiveness of filters.

The DoJ said the data was important to assist "efforts to understand the behavior of current Web users, to estimate how often Web users encounter harmful-to-minors material in the course of their searches, and to measure the effectiveness of filtering software in screening that material."

There's that pesky harmful-to-minors thing again, as judged by the DoJ. Thankfully, they reached a compromise. Nevertheless, the feds were able to get their foot in the door of Internet privacy.

The DoJ plans to use the search data it obtained to make another run at defending COPA. In October, the feds go to trial in Philadelphia in hopes of proving that filters don't work and putting COPA into the law.

Apparently that's still not good enough for Gonzales and the morality cops of the religious right.

Thursday, Gonzales called for warning labels on every page of a commercial site that contains sexually explicit material and prohibitions against "knowingly acting with the intent to deceive another individual into viewing obscene materials."

Punching up his speech with some of the most lurid descriptions of child pornography to ever pass the lips of an attorney general, Gonzales wrapped his proposals in a warm, fuzzy we-must-protect-the-children blanket.

Sadly, it was really all about misdirection and gutting the First Amendment rights of Americans.

Now that's obscene.