Features

The wild, wild web remains untamed

National | Supreme Court decision leaves protection of kids to parents

Issue: "Taking the Bait?," July 12, 1997

Your 15-year-old son is doing a book report on "Little Women." As usual, he's waited until the last minute, so he's surfing the Web looking for online helps. Using the popular Yahoo search engine, he enters the book title. Meg and her sisters are instantly forgotten. His innocent search yields results such as "XXXVIDEOXXX.COM-The largest source of adult videos on the Internet. All types of tapes available man-women [sic], women-women, male, gang bang etc."

The prominently displayed warning, "You must be at least 18 years of age to enter this site," seems to be a mere formality. Without ever having to prove his age or enter a credit card number, he can browse dozens of nude photos too explicit for even Playboy or Penthouse.

Looks like that book report is going to be late.

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Last year, Congress tried to prevent such indecent material from falling into children's hands by passing the landmark Communications Decency Act, which sailed through both chambers with just three dissenting votes. But last week, with only two dissenting votes, the Supreme Court ruled the CDA unconstitutional. It was the high court's first foray into the law of cyberspace, and the ruling, according to critics, means that for the time being there is no law there.

"There is now no law to hold pornographers responsible for their behavior in cyberspace," says Dee Jepsen, whose organization, Enough Is Enough, played a key role in drafting and passing the CDA. "The court's refusal to uphold this protection of children from Internet predators ... means that right now, the entire burden of protecting our nation's children has been placed solely on the shoulders of parents."

Like other groups that joined with the Clinton Justice Department in urging the Supreme Court to uphold the constitutionality of the CDA, Enough Is Enough argued that the law would create a partnership between the legal community, the technology community, and the public.

"That's the way we operate in our society," says spokeswoman Donna Rice Hughes. "You don't put the complete burden for preventing robbery on the homeowner. Yes, we're expected to lock our doors, have a home security system, that sort of thing. Still, that doesn't remove the liability from someone who might break in and rob you. Law enforcement needs the legal tool to prosecute someone who would infringe on your rights." CDA, she insists, was just "a tool to help protect children in a medium that their parents are many times illiterate in."

But to the Supreme Court, the verbal imprecision of the law made it a primitive club rather than a precision tool. Writing for the majority, Justice John Paul Stevens called the law a "content-based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech.... The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images."

Such a self-imposed silence, according the majority, violates the sacred principle of free speech. "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.... The content on the Internet is as diverse as human thought."

Critics charge that the court has elevated the soapbox to such supreme importance that anyone standing on it for any reason is protected-even if he deserves to have his mouth washed out with the contents of the box. The most hard-core pornography, that deemed "obscene," has never been protected by the First Amendment, and the CDA decision will not change that. But anything less than obscene, though it may be highly objectionable to many people, is termed "indecent" by the courts. In print and in broadcast, indecent material is off-limits to minors, although adults have a Constitutional right to view it if they wish.

The purpose of the CDA was simply to extend the laws governing indecency into cyberspace. Supporters said that if a 15-year-old boy is unable to buy a Penthouse magazine at 7-11, he shouldn't be allowed to access the very same magazine images online. Although the court did not disagree with that logic, it held that the government should find a "less restrictive" way of protecting minors from pornography.

Until lawmakers settle on a way to do that, the Internet will be the wild West of communications media, almost completely untouched by the rule of law and the mores of polite civilization. "Fundamentally, this is a declaration that the Internet is unsafe territory," says legal scholar Doug Kmiec, "and parents had better recognize that."

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