Most Americans understand censorship in the abstract. We know, for example, that the First Amendment prevents Congress from willy-nilly gagging speakers because it doesn’t approve of their messages. And we know that this protection extends to action by state or local governments.
Americans also have a sensitivity to sexual material, particularly images, and many don’t want that material falling into the hands of children. Congress has had its collective hands full trying to make and pass laws that will control sexual material on the Internet — and do so constitutionally.
The Supreme Court overturned the first law that tried to do this in 1997 in Reno v. the American Civil Liberties Union. In that case, the Court said that the Communications Decency Act was overly broad and included speech that might well be protected. The Court added that there are other options for parents to control what their kids see, such as filtering software.
The Child Online Protection Act is the latest congressional attempt to control online sexual content. It provides criminal and civil penalties for “any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.” (COPA has been reviewed in the Daily’s First Amendment issue; see “Communications Decency Act receives an upgrade,” Nov. 16).
The act also provides a so-called “affirmative defense” for commercial sites that use age verification to attempt to screen out minors. The definition of “material that is harmful to minors” is a modification to the legal definition of obscenity that the Supreme Court set out in 1973.
So will “CDA II” pass constitutional muster? At least one judge doesn’t think so. The ACLU requested an injunction against COPA’s enforcement from a federal district judge right after the act was passed. On Nov. 20, the judge granted the injunction based on his assessment that the plaintiffs had shown to his satisfaction that they would win a case against the new law.
So the law can’t be enforced against anyone until after Friday; the injunction will probably be extended until a hearing can be scheduled.
By now, readers might be wondering why they should care. Most of us aren’t minors, and many of us don’t have kids. So we can freely surf the Net and look at whatever material is out there, right? Some readers might even agree that there is too much smut online and think that kids shouldn’t be able to see it until and unless their parents give the OK.
Even if you agree that there should be a way to control what kids see online, this law and others like it aren’t the answer.
Legislatures and courts have been struggling for years to determine what is truly obscene and therefore not deserving of First Amendment protection. Common sense suggests that what might be acceptable in New York, San Francisco or Chicago might not be acceptable in Duluth, Minn.; Eau Claire, Wis. or Grand Forks, N.D. Further, something that’s acceptable in Paris, Brussels or London may face objections anywhere in America. So any blanket definition is problematic at the outset.
While the government might have an interest in helping parents control what their children see online, most of us probably would prefer to make that decision for ourselves and our children. Government intervention shouldn’t be the default; I, for one, would rather not have Rep. Michael Oxley, R-Ohio, author of COPA, decide for me and mine.
Most important, laws that put in place government censorship of any kind are dangerous. On its face, COPA looks like a law designed with the best interests of parents in mind. It looks reasonable — it even provides a defense if the purveyor of the porn is acting in good faith to screen out minors.
Even if we grant the good intentions of Oxley and others, COPA is still dangerous because it puts control of Internet content into the hands of the government. And that’s bad because it provides a basis from which other governmental controls of online expression could spring. Some scholars call this a “slippery slope” effect; essentially it means if you give the government an inch with the First Amendment, you run the risk of the government taking a mile.
So we should all care about what the government is doing in this area, even if we’re not minors and have no kids. COPA has potentially far-reaching consequences for online expression of all kinds. If you value your First Amendment rights to see and say what you want, you have a stake.
Want to get involved? The ACLU Web site at aclu.org has a button you can click to send a free fax to Attorney General Janet Reno to encourage her not to enforce COPA. Better yet, you can join ACLU nationally or the Minnesota branch of the ACLU: the Minnesota Civil Liberties Union.
Even if you don’t want to get involved, just remember that every time you surf the Web, for business or for pleasure, you’re exercising your First Amendment rights. Please take seriously any governmental interference in those rights, no matter how benign the law looks.
Genelle Belmas welcomes comments via e-mail at [email protected] or by phone at 627-4070 ext. 3282.