Free-speech advocates to panel: Find constitutional ways to keep kids safe online
By Cheryl Arvidson
The Freedom Forum Online
WASHINGTON – First Amendment experts urged a special study
committee yesterday not to seek to protect children against Internet
pornography by recommending measures that fail to pass constitutional
Elliot Mincberg, vice president and general counsel for
People for the American Way, Paul McMasters,
First Amendment ombudsman for The Freedom Forum, and Marvin Johnson,
legislative counsel for the American Civil Liberties
Union, testified at the first meeting of a panel created by Congress to
study ways to keep pornographic material away from children on the
The panel, which is chaired by former Attorney General Richard
Thornburgh and is operating under the auspices of the
National Research Council, is charged
with developing possible amendments to federal criminal law or other law
enforcement techniques to deal with the problem.
Two other witnesses, Bruce Taylor and Robert Flores, represented the
National Law Center for Children
and Families. Both are former prosecutors who told the panel
that part of the problem is the reluctance of the Justice Department to
prosecute Internet pornographers.
"The Justice Department has absolutely neglected its obligation to
enforce the law in this area," Flores said.
Taylor said if the government "prosecuted some of these cases," there
wouldn't be so many pornographic sites on the Internet. "There
shouldn't be any child pornography in cyberspace," he said.
Mincberg reminded the panel that every law so far aimed at restricting
Internet content has been struck down by the courts as unconstitutional, and
that seeming solutions such as Internet filters or rating systems have troubles
clearing First Amendment hurdles as well. Filters or rating systems
work if they give "optimum choice to a family," Mincberg said. "The
difficulty comes when there are mandates."
Johnson said it is possible to protect children and comply with the
First Amendment as long as certain things are kept in mind. When
considering restricting content, he said, it is important to realize that what
is being restricted is speech. Before heading in that direction, he
said, there must be a compelling government interest, and the proposed rules
must be narrowly tailored.
Johnson said this point was best made by Supreme Court Justice Felix
Frankfurter in a 1957 ruling, Butler v.
Michigan: "You cannot burn down the house to roast the pig."
Where government frequently errs in its attempts to restrict, Johnson
said, is by drafting provisions that are overly broad or too vague. A
too-vague rule keeps individuals from knowing specifically what is prohibited,
he said, so they are often compelled to "steer a wide path" around potentially
objectionable activities. That has the effect of chilling speech, he
said. An overly broad provision "sweeps away things that are constitutionally
protected" as well as the intended target, he said.
"The First Amendment should not be viewed as an obstruction or
something we didn't have to look at," but rather as a vision guiding the panel
in the proper direction, said McMasters.
He told the panelists that they need to remember that all existing
blocking tools or filters are technologically based and as such "are at best
temporary solutions. They will be worked around."
McMasters said "the only sensible approach" is to encourage parents to exercise
greater responsibility for their children's actions and to better educate
children and parents alike.
"The ideal strategy is education and voluntary efforts that enable
parents, guardians and teachers to help children become Internet savvy,"
McMasters said. "It is the only strategy that protects parents' rights to
instill the standards and values they wish for their children. It
is the only strategy that safely protects the First Amendment rights of both
speakers and listeners. It is the only strategy that is safe from
paralyzing legal challenge."
McMasters told the panel that children are "remarkably resilient" and
can both survive and thrive without having their First Amendment rights
restricted. But Flores disagreed, saying there needs to be more
focus on "the safety of the user."
"It is not enough to say my kids are resilient," Flores
said. "I don't want them to go through that experience."
Taylor said he didn't like proposals that would have Web sites rate
themselves in terms of content because that wouldn't reach the problem areas.
Instead, he said he favored provisions that would identify users of the
Internet so that certain Web sites or browsers would know automatically that
children should be blocked from some sites.
But Johnson said the panel needed to remember that anonymous speech is
also protected by the First Amendment and mandating identifiers would infringe
on that right.
Filters, however successful, cannot be 100% effective either, the
First Amendment experts agreed, and will inevitably "over- or under-block"
certain sites. But they said they have no problem with filters if
they are used on a voluntary basis and do not block the rights of others to
access materials under the guise of protecting children.
"I have absolutely no problem with filters or their accuracy rate,"
McMasters said. "It depends on where they're used."
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