LAW RESTRICTING ONLINE SMUT IS TOO BROAD (3-2004)

On the Internet, sex is pervasive. A Google search for the phrase, 
“free porn” returns 1.2 million Web sites. 

And search engines don’t know, and don’t care, who is typing in 
the search query. It could be an adult. It could just as easily be 
a 9-year-old kid.

With the protection of children in mind, Congress passed the Child 
Online Protection Act in 1998. But that law has never taken 
effect. It was ruled to be in violation of free speech rights by 
the Supreme Court.

So Congress, trying to narrow the scope of the law, revised it. 
But the new law was also challenged in court and parts of it were 
also struck down. 

Now, the Supreme Court has decided to hear the case again, to 
determine if the retooled law meets constitutional muster.

Although a ruling isn’t expected until early summer, some of the 
justices have already expressed skepticism that the revised law is 
any better than the one it replaced.

Justice Anthony M. Kennedy called the new law “sweeping.” And 
Justice Sandra Day O'Connor wondered why the government doesn’t 
simply start enforcing existing obscenity laws more aggressively.

COPA would make it a crime, punishable by six months in jail and 
civil and criminal penalties of $50,000, for any commercial Web 
site operator to knowingly place material deemed harmful to 
children online, unless the content is available only to those who 
can prove they are adults, typically by providing credit card 
numbers.

But the American Civil Liberties Union claims that the law 
restricts speech that should be freely available to adults. Not 
only would it restrict pornography, it could also restrict 
legitimate sites that provide information on health or sex.

Sites that depict images that instruct women on how to test for 
breast cancer, for example, could be targeted. One Web site 
operator who provides instructions on how those with disabilities 
can enjoy sex worries that he could also fall victim to the law, 
even though his site is not pornographic.

One problem with the law is that it does not define what “harmful 
to minors” really means. It is open to interpretation by various 
prosecutors who may become overly zealous in their attempts to 
route out online pornography.

The Supreme Court must weigh whether protecting children from 
online porn is worth risking the restriction of adult free speech. 

But government censorship of privately-owned networks is seldom a 
good idea. The reluctance of the Supreme Court to allow such 
censorship in the past is warranted. 

Although shielding kids from the free flow of online porn is 
important, there are better ways to accomplish this than resorting 
to government censorship. Software designed to screen out smut 
along with better parental supervision are possible alternatives.

Laws that serve to restrict the freedom of speech of adults, even 
if the intent is to protect children, should be an absolute last 
resort. The High Court will probably strike down this latest 
attempt by Congress to shield kids from online smut, because like 
its predecessor, it is also too broad.