Unfortunately, when Congress set out to protect children from the media and the Internet, it used a sledgehammer instead of a surgical scalpel.
The 1996 Communications Decency Act made it a federal crime to send obscene or indecent messages over the Internet to anyone under the age of 18 or to post sexually explicit material that could be viewed by anyone under 18. The Child Online Protection Act of 1998 made it unlawful to post materials that are harmful to minors on any Web site that is available to those under the age of 17.
The first was struck down by the U.S. Supreme Court as overly broad and in violation of the 1st Amendment, and the second, though partially upheld by the high court, was sent back to a lower court for further scrutiny and may yet be ruled unconstitutional. Now another law has been struck down by the 3rd Circuit Court of Appeals. But rather than appealing this ruling--as the Justice Department is contemplating--recasting it could provide the shield we need to protect children.
The idea behind the Children's Internet Protection Act, or CIPA, is a solid one. More than a thousand studies have shown that the extended exposure of children to violent and vile material in the media makes them significantly more likely to engage in antisocial behaviors. Moreover, the courts have regularly recognized that protecting children is a compelling public interest.
In the CIPA, enacted in 2000, Congress tried a different and a much more modest approach than in the earlier attempts. The law concerns only those schools and libraries that apply for certain taxpayer-funded programs that provide computers and Internet access. Recipients of these funds are only required to install filters on all computers with Internet access. Ostensibly, this means that the law deals only with access and not with content.
The American Civil Liberties Union and the American Library Assn., in conjunction with many Internet users and content providers, nevertheless brought suit against CIPA on two major grounds. First, they reintroduced content issues. These civil libertarian groups held--and the court agreed with them--that requiring filters violates the 1st Amendment because the filtering software blocks access to many sites that contain clearly protected speech, such as information about sexuality and reproductive health.
Second, the plaintiffs argued that adults should not be reduced to reading only material that is suitable for children. This would be, as Supreme Court Justice Felix Frankfurter put it on another occasion, "like burning the house to roast the pig."
However, filtering technology is getting better. Some filters now are reported to be more than 99% accurate. True, given the millions of sites, filters will misclassify some. But, as UCLA law professor Eugene Volokh put it, if one cannot create a perfect system in which the speech of adults and children are completely separate, allowing some restrictions that spill over into the adult world might well be a price worth paying if these measures protect children.
Moreover, the spillover can be minimized, if not avoided completely, if that law is rewritten. The Justice Department could work with Congress to formulate a law that would require all libraries with more than one computer to set aside some for children, which would be filtered, and some for adults, which would not. If the library has only one computer, children's hours could be established. All adult computers would be equipped with privacy panels to protect others around the viewing adults. An additional refinement would provide different filters for minors who are 12 or younger and for teenagers.
One can respect the 1st Amendment and still protect children from unbounded exposure to material the courts recognized as harmful.