Child Online Protection Act would suppress free speech among adults

In June 1997, the Supreme Court overturned the Communications Decency Act, a law that would have effectively prohibited "indecent" (though not "obscene") postings on the Internet in any area publicly accessible to minors. The Court held that the Act was overbroad and that it unreasonably and unnecessarily burdened legal communication between adults as protected by the First Amendment.

In October 1998, Congress tried to remedy this constitutional defect with the Child Online Protection Act ("COPA" or "CDA II"). The law is limited in application to commercial sites (those with anything at all to sell) and it replaces the notion of "indecency" with the nebulous "harmful to minors" standard. "Harmful to minors" essentially means "obscene with respect to minors." A posting available to minors (of any age under 17) is unlawful if an "average person" would find it patently offensive or prurient "with respect to minors" and without redeeming value "with respect to minors" (that is, all minors). Apparently, non-pornographic adult material or subject matter could be found "harmful to minors." An affirmative defense is secured by requiring credit card access or adult verification for any online file having such materials. The law did not deal specifically with violent material, and it did (somewhat clumsily) try to exempt Internet service providers from liability for the "crimes" of their customers.

In November, a coalition of seventeen plaintiffs filed suit in federal court to have the law overturned.. As a member of Electronic Frontier Foundation, I am named as an "indirect plaintiff." I authored a book, Do Ask, Do Tell about libertarianism and gay rights, which I maintain with supporting materials at my site, www.hppub.com, and some of my material is moderately adult in subject matter. For me, requiring credit-card or other adult access to see my materials would have been totally impractical and would have shut down much traffic to my site, even if I could afford to implement a credit-card facility.

The law appears to have been motivated by pre-election posturing, particularly to impress voters that Congress would "protect children." In fact the law does little to shield children from inappropriate materials. Most hard-core pornography on the web already requires credit card or adult access, although some operators "tease" consumers with free "previews" (the Justice Department has maintained that stopping this was the "real" intention behind COPA, however clumsily worded). More significant is that parents already have several effective ways to keep adult materials from their kids, all of these established voluntarily by private Internet service companies for their customers. They can choose ISP's that offer "kids' accounts" with limited access to a predefined list of "G-rated" sites approved by their ISP's. More recently, some ISP's such as AOL have offered several ages ranges for minors with appropriate predefined content for each range (in a manner analogous to movie ratings). With only a little computer knowledge, parents may set their browsers to accept only sites rated to specific levels as to adult content (according to the Platform for Internet Content Selection). Or they may install one of several screening programs that inspect all sites for objectionable material. There have been cases where children and young teens have discovered grossly indecent materials, but in practically every such case the parents had failed to install controls. Furthermore, all reputable service providers have codes of conduct (such as AOL's "Terms of Service") which are much more understandable and reasonable than laws like CDA or COPA. Then, one should ask Congress, why is COPA necessary?

Arguably, commercial operators may have some responsibility to protect the public from their "products" regardless of what parents do. Yet, the "affirmative defenses" proposed by Congress would (without much affecting commercial pornography) effectively hamper access to free content and circulation of lively discussion about important issues, both personal (such as safer sex) and public.

The web has become an effective way to present difficult materials with more depth than used to be possible. In the past, political issues about sensitive "moral" questions tended to be aired in a polarized fashion and to be settled by taking sides, raising money and counting votes, while airing the simplest (and most emotional) rhetoric possible. Some problems, such as public health, gays in the military, and recently the conduct of our president, require delving into adult concepts before they can be understood in depth. Individuals and small businesses with intellectual property to "sell" can, by presenting these issues, often counter (and perhaps undermine) well-funded political organizations, certainly with more effectiveness than individuals simply venting personal opinions with letters to editors and officials.

COPA, while perhaps intended by some lawmakers merely to stop commercial pornographers from "advertising" indecent exposures in public, may be taken in some communities as a warrant to stop all adult discussions on the Internet within possible sight of children. If certain things are right or wrong, then, according to some people, they just don't need to be discussed in public. Leave that to the pastors and professionals! Of course, this attitude does run counter to the First Amendment. COPA indeed brings up the "cultural war" hedge issue: how much freedom should adults sacrifice to protect children from inadvertent harm? It also invokes the question, whether people should expect simple answers to difficult cultural questions (as through religion) or should work out tough issues on their own. (And, yes, I wonder whether the Profiles in Learning would ultimately stunt the ability of people to look at issues on their own.)

On February 1, 1999, Judge Lowell Reed of the Eastern District of Pennsylvania issued a Preliminary Injunction prohibiting the Justice Department from enforcing COPA. The early passages in his Opinion (at my site http://www.doaskdotell.com/content/reedopn.htm) note well that the Internet has taken much of the power to influence public opinion out of the hands of the corporate owners of the press and placed it in the hands of individuals with moderate means but definitely valuable messages to publish. Indeed, the technological changes of the past fifteen years have emphasized economies of scale in some industries but individualism and entrepreneurialism in others. The opportunity to publish valuable, provocative materials without bureaucratic supervision and without the approval of others is surely controversial to some people who make see "information" as a consumer good that should be regulated. COPA is not the only threat to this. Some will call for holding authors, publishers or Internet service providers responsible when others use their writings or facilities to commit crimes (whether securities fraud or murder), and thereby keep the right to influence public opinion or achieve in the creative arenas under the control of politicians or other vested interests. For example, there is a lawsuit against the author and publisher of an "assassination manual" over a crime committed by someone who apparently followed its recipe closely.

This battle of free speech is not over. On April 2, the Justice Department appealed Judge Reed's injunction, although it will remain in effect at least until the Third Circuit rules, probably in the fall. The losing party may appeal to the Supreme Court.

Copyright 1999, by Bill Boushka and the Libertarian Party of Minnesota. All rights reserved, subject to fair use. For permissions, please email Bill Boushka (Jboushka@aol.com) or Charles Test (Chasdtest@aol.com). Reprinted from the Minnesota Libertarian, July 1998, page 6. See that paper for articles by Bob Odden, John Shoemaker, and Jacob G. Hornberger ("Do rights come from the Constitution?")

Bill Boushka http://www.doaskdotell.com/

Visit also Gays and Lesbians for Individual Liberty http://www.glil.org

Electronic Frontier Foundation http://www.eff.org