LIKE MOST First Amendment watchers, I was relieved this week when the Supreme Court once again blocked enforcement of a bad law with good intentions - the Child Online Protection Act.
The 1998 legislation, which has been challenged since its inception and never enforced, would impose harsh fines and jail terms on Web site operators who allow minors access to material deemed "harmful" under "contemporary community standards."
The law - Congress' second attempt to protect children from online porn via legislation - is vague, overly broad and would subject thousands of legitimate Web operations to malicious or frivolous prosecution, without diminishing the flow of porn from one of its major sources - overseas Web sites. So it not only threatens civil liberties - it's unlikely to work.
The challenge to COPA by the American Civil Liberties Union was joined by a broad coalition of publishers, online rights groups and Web site operators. A federal court in Philadelphia blocked enforcement of the act pending a trial on its merits. This week's decision didn't settle the issue - it doesn't declare COPA unconstitutional - but affirms the lower court's 1999 decision to keep the act in abeyance until the issue is ultimately decided.
But the court's narrow 5-4 majority opinion suggested strongly that commercial Web filtering software - available to all parents for a few dollars and greatly improved since the law was enacted - represents a far less restrictive solution to the problem than broad criminal legislation.
As a civil libertarian, I have to agree. The question is whether parents are willing to step up and take on that responsibility. Their track record isn't good.
Consider the V-chip. Under a 1997 Federal Communications Commission order, every television with a screen bigger than 13 inches made since Jan. 1, 2000, has been equipped with one of these devices, which allows parents to block shows containing objectionable content - sex, bad language or violence - under a rating system established by the television industry.
The V-chip isn't that hard to use, and the ratings, if not perfect, are at least understandable. But the instructions for setting V-chip filters are usually buried deep in a manual that most buyers ignore. And how many parents want to dig into their TV set's setup screen to turn off the chip whenever they want to watch a show that's not suited for kids?
As a result, almost nobody uses it.
So the V-chip is the perfect example of a content filtering system that's universally available - at least in newer TVs - and only minimally intrusive. If you don't have kids, you can ignore it completely. But controlling youngsters' exposure to sex and violence obviously is not important enough for most parents to spend even the minimal time it takes to punch a few buttons on the remote control. And that's disturbing.
Of course, consider what's happening to parents who are interested - and want to clean up the movies their kids watch. Several years ago, a Utah-based company called ClearPlay (www.clearplay.com) began marketing a technology that applies electronic "filters" to commercial DVDs.
ClearPlay's employees have screened hundreds of movies for instances of objectionable material in 14 categories, including sex, nudity, profanity, extreme violence and blasphemy. The company's filters bleep out whatever mix of naughty audio and video Mom and Dad want to keep away from the kids.
The results range from barely noticeable to ridiculous, especially with raunchier titles. But parents get what they want, and the original DVD remains intact. ClearPlay makes its money by selling downloadable filters - $1.50 per title or $49 a year for its entire catalog.
As long as the filters' use was limited to DVD drives installed in computers, ClearPlay's appeal and impact were limited. But a few weeks ago the first standalone ClearPlay DVD player arrived on the shelves at Wal-Mart for $70, turning the system into a cheap, mass-market item.
Hollywood was aghast from the outset. The Directors Guild of America, eight major studios and a who's who of directors filed a federal lawsuit against the firm in Colorado two years ago, claiming copyright infringement because ClearPlay alters the content of films without the creators' consent.
The filmmakers say they don't object in principle to releasing cleaned-up versions of films for audiences - they do it for airlines all the time. They just want control, or approval, of the process - instead of having it done by some guy they've never heard of (and who makes a few bucks that the studios can't touch).
After fruitless negotiations with Hollywood, the filter-makers got their allies in Congress to introduce the Family Movie Act (H.R. 4586), which would pre-empt the lawsuit and protect filtering technology from copyright infringement claims as long as the original work isn't altered and its use is limited to the home - as opposed to movie theaters.