Private sector may hold answers for public dilemma

By David Hudson
First Amendment Center

Internet content is as "diverse as human thought," as one judge put it, and that diversity includes material that, by most people’s standards, should be off-limits to kids.

Pictures of excretory functions, bestiality and other hard-core, deviant sexual practices are available for viewing on the Internet. The desire to protect young people from such material is a natural — and laudable — social instinct and, many believe, a compelling reason for governmental action.

However, our society also cherishes the constitutional right of freedom of expression. For more than four decades our highest court has held that adults should not be limited to seeing only such material as is also fit for children. Congress’ first attempt at regulating "indecent" and "patently offensive" expression over the Internet, the Communications Decency Act, failed precisely because it did not adequately protect the free-speech rights of adults and older adolescents.

As the Supreme Court noted in that decision, "the general, undefined terms ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value."

After the CDA was struck down as a flagrant violation of First Amendment principles, both federal and state legislators responded with what they hope are constitutionally defensible measures. Only time will tell if these have been narrowly enough crafted to survive judicial review.

Along with legislative proposals criminalizing the distribution of harmful material, rating and blocking schemes are rapidly being deployed against cyberporn. A number of private companies have developed filtering products designed to assist parents in controlling the information their kids can access online. Pornography foes and others believe these technological solutions should be required for computers in public institutions, and legislators and local government officials have responded by mandating their installation in library and school computers.

Cyber libertarians who question the motives of certain anti-pornography groups claim these would-be censors hide behind a protection-of-minors rationale in order to attack disliked materials. Free-speech proponents also claim that various efforts to sanitize the Net threaten to bleed the life from this most speech-enhancing, democratizing mode of communication yet known to humankind.

There is some merit in the claims of each side. Obviously, the Internet has a dark side, just as society at large does. It’s also obvious that the Net offers unparalleled amounts of information to anyone who clicks a mouse.

Karen Jo Gounaud of Family Friendly Libraries says the Internet contains both "gigantic bottomless pits" and "wonderful playgrounds." According to her, "we simply need a fence to protect us from the evil on the Internet."

The problem we face as a society is in determining how to keep kids from the "bottomless pits" without fencing off the free-speech rights of adults. Under the First Amendment, the government generally may not discriminate against speech based on the content of that speech unless the expression falls into one of a few narrowly defined categories, such as child pornography or obscenity. Even indecent sexual expression is protected by the First Amendment, as long as it does not meet the legal definition of obscenity. As the U.S. Supreme Court said 20 years ago in a broadcast-indecency case: "The fact that society may find speech offensive is not sufficient reason for suppressing it."

Some cyber libertarians say the proper role of government is to step aside and allow private industry to solve the problem. Daniel Weitzer, deputy director of the Center for Democracy and Technology, says: "It is possible to find ways to protect children online without sacrificing the free-speech values of the First Amendment. Nonprofit organizations and Internet industry members have been working for many months on solutions that will keep children safe on the Internet. Congress shouldn’t make a rush to legislative judgment until it has heard from all of these people."

However, the government will not soon step aside, say several Internet free-speech experts. Cyber liberty defender Mike Godwin says the continual problem of government overregulation stems from a fear of three things: children, computers and sex.

First Amendment attorney Robert Corn-Revere echoes a similar sentiment, saying laws are continually passed against cyberporn because of "a convergence of three factors: the historic fear of new technology, the culture war over sexual expression and the regulatory vacuum in which the Internet exists right now."

What will the future hold? In his 1997 article "Red Lion and the Culture of Regulation," Corn-Revere predicted: "Litigation over the constitutionality of the Communications Decency Act is only one skirmish in what will be a long, drawn-out campaign. The culture of regulation is marshaling its forces for a multi-faceted assault on Internet freedom."

We can only hope that legislators, in their zeal to protect children, will remember the historic words of the U.S. Supreme Court in Reno v. ACLU: "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

No one questions that the desire to protect children is well-meaning and, often, well-founded. However, as former Supreme Court Justice Louis Brandeis warned more than 70 years ago: "The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding."