This nation’s greatest legal minds have wrestled for decades with the obscenity exception to the First Amendment’s free speech guarantees. Supreme Court Justice Potter Stewart reduced his definition of pornography to his famous statement, “I know it when I see it,” and Justice William O. Douglas identified the basic problem when he observed that “what may be trash to me may be prized by others.”
But last year, Congress, with the reactionary obtuseness that typifies its arm’s-length distaste for the freewheeling technological world, decided primitive software could resolve an issue on which the nation’s courts are still far from consensus. The Children’s Internet Protection Act required all libraries accepting federal funds to install Internet filtering software on their computers as a condition of continuing to receive millions of dollars in subsidies and grants.
The American Library Association and the American Civil Liberties Union will ask to have the law declared unconstitutional Monday in the same U.S. District Court in Philadelphia that struck down the Communications Decency Act and the Child Online Protection Act – clear signals for Congress to outgrow its fear of the Internet boogeyman.
The empty mantra of “protecting the children” can scarcely disguise Congress’ technophobia, and it certainly does not warrant the filtering software’s unnecessary expense and interference with access to constitutionally protected Web speech.
Filtering software, far from being able to judge a Web site’s content as a person would, conducts only the most basic evaluation of what a requested site contains – often only checking for key words – and frequently blocks medical information, news reports and other protected speech along with pornographic material. The law requiring such software thus cuts with an unconstitutionally broad blade when cheaper low-tech solutions exist.
A library could, for example, simply place its computers in high-traffic areas, creating an immediate, continual and cost-free deterrent against any illicit use of the machines. Given that the Justice Department’s defense of the CIPA rests on claiming the act leaves the final decision on Internet filters to individual communities, one would expect Congress to favor this sort of local solution.
The First Amendment’s drafters lived before the prudish Victorian era; John Cleland’s “Memoirs of a Woman of Pleasure” was a best seller in 1748. Yet the authors of the Bill of Rights nonetheless crafted a broad protection for all speech and publication, no doubt aware many of the most powerful literary, political, artistic and scientific works push the bounds of what some might consider obscene. It is unimaginable that they intended some protected speech to be banned as the collateral damage in a war on pornography.
The Philadelphia court should declare the Children’s Internet Protection Act unconstitutional, and all Americans should hope this third strike puts Congress permanently out of the business of regulating access to Internet content.