Keeping kids away from porn eludes politicians

May 16, 2002|By MIKE HIMOWITZ

How many of you think children should have unlimited access to pornography on the Internet?

Not many, I'd bet.

Then why is it so hard for Congress and the courts to agree on a law that keeps raunchy material out of children's hands? It's not as though the adult sex industry has the influence of tobacco or drug manufacturers, or the farm lobby.

The problem, as usual, is the First Amendment - that pesky 45-word addendum to the Constitution that guarantees our fundamental political liberties.

The First Amendment takes a strong stand on freedom of speech and press. Those rights aren't absolute, of course. For example, you can't shout "Fire" in a crowded theater, unless of course, there's a fire. But the courts have ruled over the years that any law restricting freedom of expression had better address a very serious public danger and do so in the least restrictive way.

In Congress, creating a law to meet those standards would require hard work and political risk. It might even require (perish the thought) a serious public debate over First Amendment issues.

Instead, Congress has settled twice for bad Internet pornography laws, written by zealots who would probably repeal the First Amendment if they could. Both were shoved out the back door as riders or amendments to bills so that members could say they voted against smut. It didn't matter that these laws wouldn't stand up to constitutional scrutiny, even by the conservative majority on this Supreme Court. The lawmakers figured they'd get the credit and let the judiciary take the heat.

As a result, six years after Congress first acted, Internet porn is more accessible to children than ever - and that doesn't look likely to change in the near future.

This week, the Supreme Court looked at the government's latest effort - the Child Online Protection Act of 1998 - and sent it back to the lower courts for more dissection. COPA, you may remember, was enacted to replace the Communications Decency Act of 1996, which the Supremes quashed out of hand as an overly broad and badly drawn piece of unconstitutional junk.

COPA is indeed a better law than its predecessor, which isn't much of a compliment. It prohibits commercial Web site operators from placing material deemed harmful to children in a location where they can easily get to it. Moreover, it requires Web site operators who post such material to figure out a way to verify that their users are adults, through a credit card or some kind of unspecified digital proof-of-age mechanism.

The American Civil Liberties Union and others challenged the law on a variety of constitutional grounds and won in U.S. District Court in Philadelphia. The 3rd Circuit Court of Appeals upheld the lower court, but its decision focused on only one section of the law, which allows judges and jurors to apply "contemporary community standards" in deciding whether a particular Web page or image is harmful to minors.

That dubious language comes from a 1973 Supreme Court decision that has governed pornography cases ever since. The problem, according to critics, is that no one in 1973 could foresee a medium with the scope and reach of the Internet.

They argued that COPA would allow a prosecutor in a conservative Alabama town to jail a Web site operator in New York for publishing a page that would be perfectly acceptable to people in New York, or anywhere else outside of that small town.

The Court of Appeals agreed. It ruled that the very presence of the "community standards" language rendered COPA unconstitutional, since it would force every community to abide by the most puritanical community's standards.

The Supreme Court's review of that decision was fractious, as First Amendment cases often are, and settled almost nothing in five separate opinions.

Eight of the nine justices agreed that COPA was not unconstitutional merely because it applies "community standards."

However, that's all they agreed on. Justice Clarence Thomas, who wrote the "plurality" decision (there was no real majority), argued that applying the standards of a particular community to the country as a whole was not necessarily fatal to the law. Other justices argued that a "community" standard could be interpreted as a "national" standard, and Justice Sandra Day O'Connor stated flatly there has to be a national "community" standard for pornography - which doesn't exist now. Clear as mud, huh?

Still, it was a victory of sorts for anti-porn forces, because the court didn't declare COPA unconstitutional on its face. But the justices agreed that the law might have many other constitutional flaws and told the Court of Appeals to resolve those issues. Until that happens and the Supreme Court rules again, the Justice Department is prohibited from enforcing the law.

I'm not sure I know how to structure a "good" law to keep porn out of kids' hands, but COPA definitely isn't the way.

Although the Internet's governing board rejected the idea last year, I still think the best bet is the creation of an adults-only domain (call it .xxx), coupled with a narrow, carefully drawn statute that defines exactly what kind of sexual material is harmful without involving "community standards."

An adult Web site operating the .xxx zone would be immune from prosecution for anything but child pornography (which is not constitutionally protected).

Current browser technology makes it easy to filter out access to .xxx sites, which would give parents a quick means of protecting their children. Meanwhile, adults would retain the right to access constitutionally protected material.

Would this be a perfect system? No. Would it eliminate child access to a chunk of the porn on the Web with minimal damage to the First Amendment? Probably. It's certainly an approach worth considering when the Supreme Court throws out COPA next year.

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