Given this array of views in the lower federal courts, the Supreme Court justices will have no shortage of options. Ultimately, though, the high Court must resolve the latent tension between protecting Internet speech on one hand, and protecting the welfare of children beyond their actual use or exploitation to create actual photographic images on the other. Until now, the justices have been able to praise this new medium, finding no need to ponder its darker side. Such comfort is soon to erode. When the Free Speech Coalition case is argued next fall, and decided sometime in 2002, such unanimity seems most unlikely.
Predictions are always hazardous, and especially so in dealing with new issues of new technologies.
That seems likely in this instance as well. The odds suggest that the majority may seek some way to sustain the statute, though probably on the narrow grounds that Congress did not intend to criminalize artistic or fantasized images of children, but only the category of material that poses risks closely analogous to child-based imagery. Both district and appellate judges ruled the new law as clearly invalid as its late and unlamented predecessor. What the Supreme Court might well do is to hear this case as well, almost certainly affirming the lower court's ruling against COPA's validity. Thus the justices might end up splitting the difference, as sometimes happens with issues that are both difficult and politically volatile.