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BRIA 15 4 a Young People and the Internet: Issues of Censorship and Free Expression

CONSTITUTIONAL RIGHTS FOUNDATION
Bill of Right in Action
Fall 1999 (15:4)

Clash of Cultures and Law

BRIA 15:4 Home  |  Young People and the Internet: Issues of Censorship and Free Expression  |  The Law of Shi Huangdi, First Emperor of China  |  Laws of the Indies: Spain and the Native Peoples of the New World

Young People and the Internet: Issues of Censorship and Free Expression

The Internet is a wide-open free speech forum that the courts have been reluctant to restrict. But some people believe that something should be done to protect children from accessing online materials that are harmful to them.

In 1998, a 12-year-old boy in Livermore, California, boy spent his summer downloading dozens of sexually explicit images from the public library's computers connected to the Internet. The library placed no restrictions on adults or children using its Internet computers. The boy printed his collection of pictures on a relative's computer. When the youngster's mother learned of his summertime activity, she sued the Livermore Public Library for allowing him access to materials harmful to minors.

The lawyer for the 12-year-old's family argued that children have a right to be protected from harm. "It's the same as if the library had a razor-blade display case," he explained, "and allowed children to handle the blades and the kids got cut." But Livermore's library director countered, "Parents should work to instill the values. Don't expect us to do that."

The lawsuit was later dismissed in court. But the problem of children gaining easy access to sexual, hate, and other potentially harmful materials on the Internet has become a troubling constitutional rights issue. From the Internet's beginning, its users have encouraged free expression and an attitude of "anything goes." But since the mid-1990s, more and more children are going online at home, at school, and at public libraries. Some of these kids are finding things that their parents, teachers, and librarians would never think of giving them in print or other media.

Should children be protected on the Internet? Lawmakers, judges, school board members, and librarians are still not sure how to do this without violating freedom of speech under the First Amendment.

Blocking the Distributors

So far, those seeking to protect children on the Internet have targeted two different groups of people: the distributors and the users of online material. The first major attempt to regulate the distributors occurred in 1996 when Congress enacted the Communications Decency Act (CDA). Two parts of the CDA outlawed the "knowing transmission of obscene or indecent messages to any recipient under 18 years of age" or the "knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age."

This law was immediately challenged in court as violating the First Amendment. The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech . . . ." Despite the amendment's language, the Supreme Court has never ruled that freedom of speech is an absolute right. The court has recognized it as a precious right, but it has placed boundaries on freedom of speech in several areas. For example, the court has upheld laws banning obscenity. The court, however, has strictly defined obscenity. (See "Obscenity: What the Law Says" below.)

Obscenity: What the Law Says

The First Amendment does not protect obscene materials that meet all three of the following criteria:

  1. The average person applying current community standards ould find that the material, taken as a whole, appeals to a morbid interest in nudity, sex, or excretion.
  2. The material describes or shows sexual conduct in a patently offensive way.
  3. The material, taken as a whole, lacks serious literary, artistic, political, or scientific value.

See Miller v. California, 413 U.S. 15 (1973).

But the CDA, which Congress passed, did not just ban obscenity. It also banned "indecent material." Although not clearly defined in the CDA, this phrase was meant to include more than obscenity.

The phrase is used in Federal Communications Commission (FCC) broadcast regulations, which have been upheld by the Supreme Court. The FCC oversees U.S. radio and television broadcasting on the publicly owned airwaves. Its regulations against "indecent material" focus mainly on programming during hours when children may be listening. In upholding these regulations, the court ruled that broadcasting was different from other media. The court pointed out that children had ready access to it and it intruded into people's homes the moment a radio or television set is turned on.

In 1997, the CDA case (Reno v. American Civil Liberties Union) reached the U.S. Supreme Court. The CDA's supporters argued that the Internet was similar to radio and television and therefore Congress had the power to ban indecent material on it. The Supreme Court disagreed and held that the CDA violated the First Amendment. Unlike radio and television, the court reasoned, there is no tradition of government regulating the Internet, and the Internet user does not automatically receive messages or content. The court ruled that while the government does have an interest in shielding children from harmful materials, the wording of the law suppressed a broad range of constitutionally protected speech for adults. This fact, the nearly unanimous Court majority said, placed an unconstitutional burden on adult speech.

The following year, Congress wrote a new law that tried to satisfy the Supreme Court's First Amendment requirements. The Child Online Protection Act prohibited anyone from distributing for commercial purposes on the Internet "any material that is harmful to minors" without first verifying that the person is at least 17-years-old. The act states that any distributor who checks ages by "verified credit card, debit account, adult access code, or adult personal identification number" will not be prosecuted.

Under the act, harmful material would certainly cover words and images that meet the Supreme Courts' definition of obscenity for adults. But it would also include anything "patently offensive with respect to minors." Congress further defined this as both normal and perverted sexual acts, as well as the "lewd exhibition of the genitals or post-pubescent female breast." These prohibited online words or images would also have to lack "serious literary, artistic, political, or scientific value for minors."

The courts have yet to rule on the constitutionality of the Child Online Protection Act. But early in 1999, a federal judge granted a preliminary injunction that held off enforcement of the law pending a final court decision. The government must prove that the law's limits on Internet communications are the least restrictive way of protecting minors from material that would be legal for adults to read and view.

Blocking the Users

So far, the courts have refused to restrict speech on the Internet that is legal for adults. Since many believe that some of this legal material may harm children, the problem arises: Is there a constitutional way to protect children from it? Another way to solve this problem might be to block users from reaching certain Internet content.

Public libraries find themselves caught between those who want to keep children away from inappropriate Internet sites and those guarding against censorship. Libraries have reacted by adopting Internet policies, such as requiring written parent permits, asking children to sign acceptable-use agreements, equipping workstations with privacy screens to block what adults are viewing, and positioning computers so that library personnel can monitor terminals used by children. One of the most promising solutions, however, may be special filtering software to block user access to some Internet sites.

Filtering software generally uses preselected keywords, Internet domains, or lists of web addresses to block access to certain kinds of web sites. A survey conducted in 1998 found that about 15 percent of all U.S. public libraries connected to the Internet were using filters on some of their terminals. Some libraries installed filters on Internet computers used only by children and labeled unfiltered terminals "adults only."

Filters provoke controversy among librarians. The leading national organization of librarians, the American Library Association (ALA), adopted a resolution in 1997. It stated that "the use of filtering software by libraries to block access to constitutionally protected speech violates the Library Bill of Rights." But some librarians, like David Burt of Oswego, Oregon, disagree. They argue for filters on public library computers to shield children from Internet sites containing explicit sex, hate, and other content harmful to minors. Radio talk-show host Dr. Laura Schlessinger, a physiologist, recently attacked the ALA resolution against filtering. She thought it an irresponsible act of advocating unlimited access of minors to obscene and pornographic web sites.

Do Internet filters work? According to a filter-evaluation project conducted by public librarians in 1997, keyword blocking may prevent access to significant amounts of valuable information, such as that concerned with breast cancer and safe sex. Other methods of blocking are also not foolproof, but filters seem to work most of the time.

In 1998, a U.S. district court made the first important court ruling on filtering software in public libraries. The court decided that a Loudoun County, Virginia, policy requiring filters on all its public library Internet computers violated the First Amendment. The court found that while the filtering software may have blocked inappropriate words and images for children, it also prevented adults from accessing legal material. This, the court said, was an unconstitutional restriction of free speech.

At least a dozen states have either passed or are considering laws requiring some kind of Internet filtering on public library and school computers. In Congress in January 1999, Senator John McCain (R-Ariz.) introduced the Children's Internet Protection Act. If it becomes law, this act would mandate filters on all public-school online computers and on one or more public library terminals hooked up to the Internet. The McCain bill would require the filtering software to block material "harmful to minors" as defined by local school and library officials.

To Filter or Not to Filter?
Those favoring filtering the Internet in public libraries point out that librarians already filter other library resources. For example, most public libraries would not subscribe to Hustler magazine or buy X-rated videos. Therefore why should librarians feel they have to allow access to everything on the Internet? What is wrong with filters on computers used only by children, or even an "on/off switch" for adults to use as they choose?

Those opposed to filtering argue that filters allow software companies rather than library professionals to decide what information is appropriate for young people. Also, filters encourage a false sense of security since sometimes they block valuable sites or even permit access to places where children should not be. Finally, is it the job of libraries to censor what children access at the Internet computer? Should not this really be the responsibility of parents or the young people themselves who must learn to live in an online culture?

For Discussion and Writing

1. What do you think is the best approach to take in dealing with obscenity and pornography on the Internet? Why?

a. block the distributors of it
b. block both adult and child user access
c. block only child user access
d. let the traditional "anything goes on the Internet" rule

2. What kinds of information and images on the Internet do you think would be "harmful to minors"? Why?

3. Do you think the Child Online Protection Act violates the First Amendment? Why or why not?

For Further Reading

Balas, Janet. "Debating Public Access to the Internet." Computers in Libraries. March 1998:42-44.

Gorman, Anna. "Libraries Caught in a Tangled Web." Los Angeles Times. 18 Jan. 1999.

A C T I V I T Y: Debate on Filtering

Imagine that your city council is deciding whether to require filters at your public libraries. The various proposals are to require filters:

a. on all public library computers all the time

b. on all public library computers with an "on/off switch" activated by the user

c. only on public library computers that children must use

d. on no public library computers at any time

Divide the class into small groups. Each group will role play the city council. Each council should fully discuss the various proposals and their pros and cons. Then each council should vote on which proposal to adopt. Finally, each council should report back. Then the class should take a vote on the filtering choices to see which one the majority would like to see implemented in the local public library.