Aligning Cyber-World Censorship with the Real-World Censorship
A. Jacob Werrett
affiliation not provided to SSRN
February 27, 2009
Connecticut Public Interest Law Journal, Forthcoming
Should six-year-old children be able to access “the largest pornography store in history?” They can. Should eleven be the average age that a child first views pornography? It is. Should children between the ages of twelve and seventeen represent the largest group of pornography consumers? They do. It is puzzling how a quintessentially adult activity has increasingly edged-out Saturday morning cartoons, homework, piano lessons, and T-ball games. Perhaps social consensus is that teenagers are best served by searching out porn 150 billion times a year. But, I doubt it.
Juxtaposing limitations on children's exposure to speech in the real-world versus the cyber-world reveals many inconsistencies. For example, an eight-year old child is not allowed into a strip club with a main street address, but is welcome to enter the same strip club at its URL address. Additionally, a ten-year old child cannot enter an adult bookstore and buy a pornographic book or video, but can enter the same bookstore and purchase pornographic books and videos online. Many arguments can be made about why these inconsistencies are appropriate, justifiable, and perhaps even preferable to the alternative – curbing constitutionally protected speech. Admittedly, the Internet is a special medium of communication; and the First Amendment safeguards for speech and press is a time-honored and important fourth check against our federal government. This article discusses what can be done to bring the unchecked cyber-world into step with the real world without undermining – what some believe is – the crowning characteristic of cyberspace: "[the fact that it is] the most participatory form of mass speech yet developed . . . [a medium] as diverse as human thought."
At first glance, censorship case law seemingly zigzags back and forth upholding a bizarre patchwork of conflicting ideals – one set for the real world and another for the cyber-world. For example, in Ginsberg the Court upheld the constitutionality of a New York statute that prohibited selling “obscene material” to children, including pornographic magazines. Similarly, in Renton, the Court upheld a zoning ordinance that prohibited adult movie theaters "within 1,000 feet of any residential zone, church, park or school," holding that the statute was justified in light of substantial evidence showing the adverse effects on neighborhood children and community improvement efforts. In Pacifica, the court found that the FCC had authority to prohibit certain speech that was "patently indecent" from being broadcast on the radio. These cases illustrate that the Supreme Court has supported many federal laws narrowly tailored to protect the development of minors.
At the other end of the spectrum, Courts have struck down several federal statutes aimed at censoring Internet speech to protect children. The two primary attempts to limit the sale of indecent speech by commercial entities on the internet were passed by the House and Senate, but neither held up under judicial scrutiny. The Communications Decency Act (“CDA”) was the first major attempt. In 1996, Congress added the CDA as a “second thought” amendment to a larger proposal. The CDA prohibited knowingly transmitting obscene or indecent messages to children under the age of eighteen via the internet. This statute was struck down by the Supreme Court as an undue burden on First Amendment protected speech. Indeed, CDA had not been carefully considered by Congress and some have been highly critical of the awful stage it set for future attempts to make the internet safe for children. Larry Lessig found CDA a “law of extraordinary stupidity; it practically impaled itself on the First Amendment.” And Professor Preston elaborated that it was, “thrown together without much thought, the CDA had techies nearly strangling their mouses in the vehemence of submitting their criticisms en blog.” The Child Online Protection Act (COPA) was the second major attempt by Congress to protect children through cyber-regulation.
In 2004, Congress created COPA in response to the overturned CDA, but failed to heed several direct warnings by the Supreme Court, that such a law would be unconstitutional. Wide-open Internet is not predominantly the fault of the Supreme Court. No doubt, Congress made colossal blunders in the legislation process. Each law Congress created fell short of the censorship standards required under the appropriate constitutional review for content regulated speech – strict scrutiny. Perhaps just as surprisingly, Congressional efforts since the CDA and COPA have either failed to catch momentum and have become largely irrelevant or have failed to heed the specific warnings of the Supreme Court in both Reno and Ashcroft. Examples of these more recent attempts to protect children online are discussed in the following sections.
From one perspective, the internet is a special "marketplace of ideas" and may deserve greater protection from censorship than other media. On the other hand, the internet is used in 1.5 billion homes, accessible by even the youngest children, and may be one of the most pervasive mediums available; and perhaps as such, should be regulated more heavily than less pervasive mediums.
This article presents guidelines and ideas for creating a constitutionally sound federal statute to protect children online. Part II discusses and analyzes past precedent to catalyze a discussion of how to create legislation to protect children online that will meet constitutional standards. As a result this section simultaneously discusses successful and unsuccessful legislative attempts to protect children in cyberspace. Part III analyzes several recent attempts to channel speech online. This section also discusses the past failures, successes, and potential of current legislative considerations. Part IV provides several possible strategies for protecting children without burdening online speakers or spectators. This section relies on past precedent and facts about the internet to piece together a coherent regulatory scheme that would provide nearly one hundred percent protection for those cyber-users who want to avoid the indecent and obscene. Finally, in Part V the article concludes by providing a starting point for dealing with an issue that is far from finished.
Number of Pages in PDF File: 38
Keywords: Censor, pornography, internet, cyber, solutions, freedom of speech, first amendment, constitution
Date posted: April 8, 2010 ; Last revised: May 24, 2014