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 "
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
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.)
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.
ã Copyright 1999,
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