'Tools' fail as strategies to keep kids away from Net sex at libraries
By Paul McMasters
First Amendment Ombudsman
First Amendment Center
(Editor's note: The following is excerpted
from Paul McMasters' statement yesterday afternoon before the National Research
Council's "Committee to Study Tools and Strategies for Protecting Kids from
Pornography and Their Applicability to Other Inappropriate Internet Content."
The committee is chaired by former U.S. Attorney General Richard Thornburgh and
was commissioned by Congress.)
When good people with honest motives sit down to discuss tools and
strategies for protecting our children from harmful speech, "censorship" may
seem too harsh a word, but we must not set it far from our deliberations. It is
tempting, after all, when confronted with such a problem, to consider
harnessing the machinery of technology to the power of government to restrict
children's access to certain information, especially information that as
individual parents we might consider risky or harmful. But we submit to such
temptation at peril of First Amendment rights and values.
Those who struggle to reach a rationale for suppression of sexual
speech or burdensome regulation of such speech on the Internet must of
necessity rely heavily on moral and ideological assumptions and assertions
rather than scientific or psychological evidence. As a result, arguments for
the harm to minors of so-called "indecent" material on the Internet are rife
with speculation and hypothesis. Not only does this provoke First Amendment
concerns, but it stands in the path of helpful deliberations and useful
Technological tools for restricting access
Many view technology as the best approach to searching out, blocking
or segregating material considered inappropriate for children on the Internet
or World Wide Web. These technical tools include filtering and blocking
software that depend to some extent on voluntary or mandated labeling or rating
of content, assignment of an "adult" domain name, age-verification systems, or
a combination of these approaches. All of these approaches, however, carry
considerable constitutional baggage.
Rather than go into details of the various ways filtering and rating
systems incur serious First Amendment concerns, I would refer the committee to
other statements from this panel and two other excellent resources:
Robert S. Peck's Libraries,The First
Amendment and Cyberspace, published by the American Library
David Sobel's Filters &
Freedom, published by the Electronic Privacy Information
For a helpful analysis of so-called "cyberzoning" – the "dot
sex" or "dot xxx" domain- names approach – I commend to you the statement
of Robert Corn-Revere before the COPA Commission last month.
As for mandated age verification, which would be required for any of
these systems to effectively do the job desired, these systems represent not
only an invasion of privacy rights for adults and children, but they have
serious First Amendment implications. "Any requirements that Internet users
identify themselves in some way (or even take additional steps to establish
that they are entitled to receive the information they seek) as a condition of
access to online content necessarily chills speech," says David Sobel. "The
courts have recognized that the exercise of First Amendment rights may not be
conditioned on a surrender of personal privacy."
While these tools may well be helpful to parents who wish to guide and
monitor their children's use of the Internet, their mandated use in public
venues carries grave threats for fundamental freedoms. There is no way that I
know of for mandating their use in public libraries and schools or by upstream
providers without engaging the constitutional rights of both adults and minors
and of both users and providers.
Aside from constitutional considerations, technological tools, and
strategies based on technology, must confront a hard reality: They are, at
best, temporary solutions. They will be worked around. (For example, see the
work done by Peacefire,
The Censorware Project and others in
exposing the errors and vulnerabilities of filtering software.)
The nation's public libraries are Ground Zero in the debate over
blocking or restricting access to inappropriate material for young people.
Thus, the First Amendment perspective on the use of filtering and blocking
technology by libraries merits special mention.
There is evidence that the scope of the problem can get exaggerated in
public discourse. In a report prepared for the National Coalition Against Censorship,
Elisabeth Werby notes that most young library patrons do not "surf" the
Internet, instead using it to play games and revisit the same sites over and
over. "Certainly, some children do deliberately seek out sexually explicit
material," she wrote. "But after more than two years of aggressive effort to
collect data, the pro-censorship organization
Filtering Facts identified only
196 such incidents. Considering that an estimated 344 million children visit
public libraries each year and that nearly three-fourths of these libraries
offer some form of public Internet access, this evidence belies the claim that
there is a problem of 'epidemic' proportions."
While 75% of public libraries have Internet access, and 15% have
installed filtering systems, there are serious constitutional problems to
library officials using filtering and blocking software. Parents have a right
and a duty to guide and monitor their children's access to Internet material.
Activist groups have a right to advocate for those parents' values. But
librarians should not be coerced by law or public pressure to serve as
stand-ins for parents when it comes to restricting access to certain kinds of
speech. That would conflict with their larger duty to the community, not to
mention First Amendment jurisprudence.
Libraries, are, in fact, governed by a stringent set of rules for
removing material or denying access to it. Librarians simply cannot declare
some material off-limits for some people. There must be a determination in a
formal process, sanctioned by legal proceedings in which speakers have an
opportunity to defend their speech, before material can be removed or
restricted for obscenity or harm to minors.
The unique character and nature of libraries is reflected in the fact
that many statues regarding harmful-to-minors material exempt the public
library, according to Robert S. Peck in Libraries,
The First Amendment and Cyberspace. In addition, writes Peck,
the Supreme Court in Reno v. ACLU
"strongly suggests that public libraries treat the Internet no differently than
their policies on books."
So what can libraries do? Outside of the posting of "Acceptable Use
Policies" and pro-active measures such as creating recommended Web sites for
minors, or imposing time- manner-place restrictions, libraries must walk a fine
line in this area.
Laws and coercive policies raise serious practical and First Amendment
problems, as I have indicated. More importantly, they expend critical energy,
resources and time in the debate leading up to implementation and the
inevitable court battles they provoke.
It is instructive that the Communications Decency Act was struck down
by a unanimous Supreme Court and that the Child Online Protection Act, crafted
to avoid some of the CDA's failings, is now under permanent injunction from a
federal court. Mainstream Loudoun
and other cases show that state and local efforts to restrict access to
Internet content are likely to fare no better when challenged on First
As David Sobel noted in his statement before the COPA Commission last
month: "Every federal judge (including the justices of the Supreme Court) who
has considered this issue has agreed that content-based restrictions on
Internet 'indecent' or 'harmful to minors' speech are unconstitutional."
Aside from that, there are all sorts of practical and legal negatives
accompanying a governmentally mandated approach to restricting access to
Internet material, for either adults or minors. There is no centralized control
of the Internet or World Wide Web. It is an international medium with no
geographic borders. Any effort to regulate or restrict would necessarily entail
some of the technological tools already found wanting for practical and legal
A legalistic approach also is an open invitation for advocates of
restricting access to other types of speech considered "inappropriate" material
on the Web: violence, hate, birth control and contraception, gay and lesbian
information, and extremist political and religious expression, to list a few.
Each of these presents its own unique First Amendment challenges. Further,
government action in restricting access to so-called "inappropriate" content
not only threatens First Amendment rights, it would severely limit the
Internet's potential as an individually empowering and uniquely democratizing
Given the difficulties in finding the proper tools to restrict access
to whatever becomes defined as "inappropriate" or "harmful" speech, not to
mention the difficulties in determining who should have access to such
material, the only sensible approach to the problem ultimately must give
priority to individual and parental determination.
First Amendment-friendly approaches
For those reasons and more, I would urge the members of this committee
to carefully consider a voluntary educational approach to the problems the
committee has been charged with addressing. There are a number of Internet
operations, corporations and organizations that are offering educational
resources for parents and others, including books, pamphlets, special Web
sites, videos, and even classes. A special cooperative effort of major players
online has produced the GetNetWise Web
site that helps parents and children to make wise choices. The
American Library Association, as well as
individual libraries, offers helpful online guides for patrons, young and
In fact, there is a wide array of options for parents and children as
guides to safe and secure surfing on the Internet. "Parents can choose from
among literally thousands of kid-friendly web sites, and can use child-oriented
ISPs and browsers to keep their kids' Internet experiences within safe bounds,"
Richard Kaplar writes in the introduction to Protecting Kids Online, a compendium of projects
and efforts by industry and nonprofit organizations, published by
The Media Institute. "At the same time,
parents can choose from scores of filtering and blocking software products to
screen out inappropriate content before it reaches their children."
Those resources more than address the concerns of parents who wish to
direct their children's online activities at home. That leaves the problem of
children accessing the Internet at the homes of friends, at the public schools
and libraries, Internet café, bookstores and other places. No laws are
going to cover all of those online venues, nor the other media in which
children will encounter accidentally or intentionally
In such circumstances, the ideal strategy is education and voluntary
efforts that enable parents, guardians and teachers to help children become
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 relatively safe from paralyzing legal
As the Supreme Court found in Reno v.
ACLU, material on the Internet is as "diverse as human thought."
Any attempt to limit access to that material should be made with the utmost
caution. That caution applies equally for children or adults. In 1975, the
Supreme Court said in Erznoznik v. City of
"Speech ... cannot be suppressed solely to protect the young from
ideas or images that a legislative body thinks unsuitable for them. In most
circumstances, the values protected by the First Amendment are no less
applicable when government seeks to control the flow of information to minors."
Not only is the educational approach the most First
Amendment-friendly, it is the most effective in the long run. It not only
protects children at home but in school, at the library, and elsewhere where
they may encounter inappropriate material, in whatever medium or form it may
appear. Any other approach aimed at content on the Internet, which continuously
expands, redirects, transforms and indeed morphs into various other media, is
constitutionally suspect, practically challenging, and destined for
Harnessing technology to zone, filter and restrict access to Internet
content are cyberspace equivalents of muzzling, silencing and censoring in
other media. To do so constructs a class system in expression that measures
speech not by its value but by the stigma pressure groups and parental panic
are able to attach to it.
As appealing as some of the technological tools may be, we must accept
the fact that there are no smart bombs to take out precise categories of
speech; the collateral damage to other speech is always massive.
Instead we must rely on the fact that our children are remarkably
resilient, relentlessly individual and essentially good. They have thrived on
extensive First Amendment rights and deserve to arrive at adulthood with those
And as a nation and a society engaged in an exhilarating experiment in
democracy, we have thrived on the idea that we can tolerate, even defend,
inappropriate speech for appropriate principles.
Under the circumstances, however, we should be loath to try anything
other than a voluntary educational approach. Give the parents the proper tools
and they'll develop their own strategies. Outside the home, especially in
public places, the rest of us should continue to embrace the risks of living
free and thinking large.
Over the past two centuries, Americans have invested heavily in the
idea that it is better to be offended than silenced. Let's not abandon that
idea in the face of an undemonstrated threat of an unproven harm.
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