To Senator Patrick Leahy, a fuck you from Dick Cheney is an attaboy from us…

WASHINGTON- PATRICK LEAHY merits a deep bow of respect – not as the target of a foul-mouthed Dick Cheney caught in the act of being himself – but as a gutsy and prophetic defender of the Bill of Rights when doing so cut against every imaginable political grain. The Vermont senator’s lonely position mixing principle and common sense is Exhibit A for the proposition that standing up to the politics of pornography is worth the effort and that basic freedom is defended in the process.

Indeed, thanks to him and to the Supreme Court this week, it’s not that much of a stretch to say that Internet sites will feel free to fully quote Vice President Cheney’s odd instruction that Leahy commit an impossible sexual act, without fear that John Ashcroft’s conformity police will sweep down on them for the alleged purpose of protecting ”our kids.”

Nearly six years ago, Leahy was the only senator to stand against a classic example of the politics of porn – a poorly written stunt called the Child Online Protection Act. This garbage, which cleared the Senate by 98-1, was signed by Bill Clinton, and embraced by the Bush administration, made it a crime to post material on the Internet that is ”harmful” to children.

The statute was the result of an effort to end-run a Supreme Court decision the previous year that had struck down an even more flagrantly unconstitutional speech regulator known as the Communications Decency Act.

The history of what amounts to eight years of politics-based kowtowing to extremist views about censorship is truly amazing, even for a political system already famous for its continual journeys into totalitarian experimentation. One of the few reasons to enjoy the charade is that it obliterates ideological distinctions among federal judges, including Supreme Court justices, as they try to untangle the Orwellian from the merely foolish.

In a too-cute-by-half attempt to get around the obvious defects of the original effort to put politicians in charge of Internet content, the 1998 statute contained an exception for websites that made a serious attempt – defined by the likes of passwords or other screening devices like credit cards – to keep minors from having automatic access to smut.

In practice, however, the government has been unable to prosecute under the law, and for good reasons. The first declaration that the 1998 law was unconstitutional came in a federal appellate court decision in Philadelphia two years later. This decision was not reversed, but sent back for further review by the Supreme Court in 2002. Once again it was declared unconstitutional, a decision upheld this week by a five-justice Supreme Court majority.

As so often happens in free-speech cases, the statute bumps into the fact that material deemed ”harmful” for children by some headline-obsessed federal prosecutor can also be perfectly appropriate for adults. Far more than porn is involved here; as civil liberties organizations have shown, there is also the potential of a harmful effect on efforts to disseminate women’s health information and even such legal documents as special prosecutor Ken Starr’s details-obsessed report on Clinton’s activities with Monica Lewinsky.

The trouble with content-based regulation of the Internet, backed by criminal law, is two-fold. The first problem is that regulation of speech needs to be a last resort, not a first option. Where the Internet is concerned, it is a fact that technology itself, in the form of screening software and other material available to adults, is perfectly capable of achieving the desire result.

The second problem is practical. The statute obviously has to target US sites. Even a computer idiot like me knows that pornography, including smut on the Internet, is a worldwide mess. Indeed, there is a tiny nation in the Pacific, a Cook Islands lump of coral called Niue (population barely 2,000) that has more smut pages posted via its domain than the entire country of Japan.

Leahy knew all this six years ago. He noted the small problem of the US Constitution. He noted the complete failure of Congress to consider less restrictive means of accomplishing its purpose. And he correctly predicted that the only real result of the legislation would be ”interminable litigation.”

Despite the obvious interpretation of this week’s decision that content-based criminalization of the Internet is both wrong and foolish, John Ashcroft’s relentless pursuit of big government authority over what people read and watch is too shameless to allow for the acknowledgment of defeat. Instead, his Justice Department blithely claimed that it ”will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web.”

That is the real smut. Thanks to the Supreme Court’s narrow majority, any Internet site in the country should now feel free to tell Ashcroft with clinical precision exactly what he can do with his sanctimonious demagoguery.