Toward a Constitutional Regulation of Minors' Access to Harmful Internet Speech

Abstract

In this article, I scrutinize Congress's recent efforts to regulate access to sexually-themed Internet speech. The first such effort, embodied in the Communications Decency Act, failed to take into account the Supreme Court's carefully-honed obscenity and obscenity-for-minors jurisprudence. The second, embodied in the Child Online Protection Act, attended carefully to Supreme Court precedent, but failed to account for the geographic variability in definitions of obscene speech. Finally, the recently-enacted Children's Internet Protection Act apparently remedies the constitutional deficiencies identified in these two prior legislative efforts, but runs the risk of being implemented in a manner that fails to protect either adults' or minors' right to access protected expression. Although CIPA recently withstood a facial attack on its constitutionality, it is likely that this statute will confront as-applied challenges. I analyze the technology and the First Amendment doctrines at issue in CIPA's implementation, and set forth recommendations as to how libraries can implement CIPA in a manner that protects both adults' and minors' free speech rights.

Keywords: Child Online Protection Act (CIPA), internet, minors, sexually-themed speech, First Amendment

JEL Classification: K10