U.S. Rep. Chris Cannon is proposing legislation that would strip the federal judiciary of its ability to hear cases involving state laws on pornography, leaving it to the state courts to decide such issues.

Utah's senior House member warns that federal courts are not doing a good job upholding state laws, creating what he described as "a dangerous climate for our children" by overturning anti-pornography statutes.

His bill comes as a federal court weighs a challenge to Utah's Child Protection Registry, which sets up a list of designated Internet porn purveyors. Cannon also noted that the courts invalidated portions of the federal Child Pornography Prevention Act of 1996.

Cannon's bill is a tough stand that many Utahns will support.

But it is premature to assume that Utah's online registry will be struck down by the court. It is an opt-in program under which people voluntarily list their e-mail addresses, and pornographers are required to remove those from their mailing lists. There may be no problem with the concept in the federal courts, and so Cannon's effort to make this a state issue may be unnecessary. It may even raise new problems.

State courts work well for cases in which either or both parties reside or do business in the same state, or when the question does not involve matters of federal law or civil liberties protected by the Constitution. When interstate commerce comes into play, or when questions on constitutionality arise, the federal courts are the proper venue.

Pornography laws always involve First Amendment questions about whether a particular message can be communicated. Obscenity (according to community standards) is not protected, but a lot of sexually oriented material rides the edge of legality. Some is deemed obscene and some is not.

Because the Internet is borderless, a producer of inappropriate material can always argue that he is not subject to Utah law; just because a Web site can be viewed in Utah may not be sufficient grounds to assert state jurisdiction.

The Supreme Court has already recognized local standards in defining obscenity. In Miller v. California (1974), the court created a three-prong test for determining if something is obscene. Two of the elements in the test -- whether the work is patently offensive, and whether it appeals only to prurient interest -- are based on local standards. The third element, whether there is any redeeming academic, political, literary or artistic value to the work, is not defined by local mores.

Unfortunately, it has never been especially clear what a valid local standard might be. The courts keep striking laws that attempt to regulate pornography. The Miller test creates awkward situations, such as when the movie "Caligula" was deemed not obscene because it depicted Rome's political infrastructure along with its moral debauchery. On that basis, the film was said to have academic and artistic value. We fail to see what artistic basis can be claimed for the hardcore pornography that saturates the Internet these days, and yet such claims seem to be upheld.

Yet stripping the federal courts of authority leads nowhere. Long-established legal doctrine, including judicial review and Supreme Court interpretation of the Constitution, would seem to suggest that it's not possible to remove state pornography laws from the scope of federal jurisdiction. The Supreme Court has the authority to decide all cases in law and equity arising under the Constitution, and that is not going to change. Cannon's bill will not somehow transform pornography into something other than a First Amendment issue.

We applaud Cannon's effort to give decency a stronger place in the law. Unfortunately this is an extremely difficult thing to do in an American culture that seems more and more to be acquiring some of the traits of ancient Rome.

The best solution to online pornography is not stripping the federal courts of authority but helping the public block it using existing tools. Great progress has been made in the filtering of Web content, and better solutions are emerging all the time. Consumers need to be smart enough to take advantage of the available options.

This story appeared in The Daily Herald on page A6.

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