Child-Proofing the Net Still an Unsettled Issue
The Supreme Court of the United States appeared to draw a deep line in the cement four years ago when it struck down the Communications Decency Act, a flawed law designed to eliminate smut from cyberspace. But it turns out that it was just one battle in an ongoing fight to regulate speech on the Internet.
On its face, the debate is over the admirable goal of keeping kids away from stuff that’s bad for them. But when the government steps in and tries to do the job of parents, it ends up risking more than simply treating its citizenry like children.
Back in 1997, the court understood that and found that the constitutional guarantees afforded U.S. citizens did not allow lawmakers to protect children by barring distribution of lewd material online. The reason: Such an outright ban would infringe on the rights of adults to, well, behave like adults.
The decision was so straightforward that it seemed this particular debate was over. But the Supreme Court decided last week to hear an appeal of another restrictive law, the Child Online Protection Act, or COPA, which already has been struck down twice by lower courts. It’s unlikely that the Supremes will
back away much from their decision on the decency act. But it’s nonetheless a little weird that they agreed to hear the case because COPA was killed by judges who relied in no small amount on the court’s earler decision.
U.S. District Judge Lowell A. Reed of the Eastern District of Pennsylvania got right to the point with his 1999 decision against COPA, which directs Web sites to take steps to limit access to material that could be “harmful to minors.”
He opened with a simple declarative sentence: “The 1st Amendment to the United States Constitution provides that Congress shall make no law abridging the freedom of speech,” which Reed, oddly, interpreted to mean Congress shall make no law abridging the freedom of speech.
Reed, and later a three-judge appellate panel, found that although the goal of the law was worthy--kids really do need to be protected from the Internet--that goal could not be achieved by restricting everything on the Internet to stuff that would be safe for any 5-year-old.
The CDA was struck down on precisely those grounds. The enforcement of COPA was stopped even though its backers tried to do something a bit less draconian, which was force Web sites to identify adults and children--and then keep the kids out.
The problem with this approach is that lots of the information on the Web is important to adults, somewhat embarrassing, and, in the eyes of some parents, inappropriate for their children. Examples include Web sites that discuss prevention and treatment of sexually transmitted diseases, birth control, breast cancer and religious material.
The idea behind COPA was that Web sites would have to use some kind of identifier--such as a credit card--to verify the age of users. Identifiers, of course, eliminate anonymity, which makes researching sensitive topics on the Internet so appealing for people.
“Protecting kids is really important. First Amendment rights are really important,” said Paula J. Bruening, staff counsel for the Center for Democracy & Technology, which fought against the CDA and COPA. “There’s a tension there that the court is going to continue looking at to make sure we’re getting it right.
“This issue is going to come up again and again,” she said. “There’s no way to guess which way the court is going to go on this, but given that a substantial majority voted to strike down the CDA we’re hoping that the justices will act in a similar fashion on COPA.”
There certainly are a lot of unpleasant realities of life that young children should be protected from until they’re mature enough to understand all the nuances involved. For instance, I don’t think a 7-year-old needs to know that the Emancipation Proclamation freed slaves only in states that had left the Union or that the Food and Drug Administration was established because businessmen sold chalk dissolved in water as milk to schoolchildren. These are unpleasant truths that could cause a premature cynicism in the young mind.
Likewise, they should be protected from raw sexual content.
The way to do that, though, is for adults to pay attention to what their kids are doing on the computer. The Internet isn’t so much a way to bring filth into your home as it is a way for people to go anywhere, clean or filthy. Building too many checkpoints does just what it does in the real world--it frustrates or intimidates people from going where they want.
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Dave Wilson is The Times’ personal technology columnist.
