After having repeated attempts to regulate pornography struck down by the Supreme Court, Congress passed the Children’s Internet Protection Act (CIPA) in 2000. The act is narrow: it withholds funding from K-12 schools and libraries if they do not use technology to prevent minors’ access to “visual depictions that are obscene, child pornography, or harmful to minors.” Due to its narrow nature, and under the pretense that a librarian could, for example, remove blocked sites for adults to access constitutionally protected free speech on a short time schedule, the Supreme Court upheld the constitutionality of CIPA in 2003. 539 US 194.[1]
The regulation of pornography has generally been very difficult. “Obscenity” is not protected speech under the First Amendment. Obscenity is hard to define, though; one Supreme Court Justice has written “I know it when I see it.” 378 US 184. But no one doubts that protecting children from obscene material is an important government interest, and the internet has made that job even harder. Congress has many times tried to restrict minor access to indecent material over the internet. In 1997, though, the Supreme Court struck down the Communications Decency Act, which restricted minors from “patently offensive” material. In 1998, Congress gave it another go, passing legislation mandating that producers of “material harmful to minors” restrict access to children on their websites. This Child Online Protection Act also failed to pass constitutional muster, and never went into effect.[2][3]
If we take protected speech seriously, this problem might be insurmountable for legislatures. We have an act (CIPA) that regulates only in schools and libraries. Even for those institutions, the act does not mandate prosecution, but withholding of funds. So we might turn to alternative systems of regulation, like the Association of Sites Advocating Child Protection (ASACP). ASACP is sponsored by the adult entertainment industry, and created the “Restricted to Adults” website label in 2007, so that parents could filter their own access at home.[4] Still, like CIPA, this only regulates at the point of consumption, and I doubt whether trusting parents, school officials, and librarians will necessarily result in the protection of all children.
Internet pornography is huge—one study in 2008 concluded that a fourth of employees with access to the internet visit pornography sites during working hours.[5] But I can’t imagine that the internet pornography problem is otherwise unique for the purposes of technology policy. Taking our desire to keep children from pornography for granted, the problem is like many others: to what extent should we bend our hard line on free speech when the safety of a vulnerable group is involved?
[1]http://en.wikipedia.org/wiki/Children%27s_Internet_Protection_Act#What_CIPA_requires
[2]http://www.pbs.org/wgbh/pages/frontline/shows/porn/prosecuting/overview.html
[3] http://en.wikipedia.org/wiki/Child_Online_Protection_Act
[4]http://en.wikipedia.org/wiki/Association_of_Sites_Advocating_Child_Protection_(ASACP)
[5] http://www.thedailybeast.com/newsweek/2008/11/28/the-tangled-web-of-porn-in-the-office.html
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