from the April 02, 2007 edition -
A shameful surrender to pornographers:
To protect kids, why can't we require porn sites to check IDs?
By Cathy Ruse
Another federal judge has struck down the Child Online Protection Act.
Had it taken effect, the 1998 law would have done one simple thing:
require Internet pornographers to verify the age of customers through
the use of adult-access codes or credit cards.
Last month, Judge Lowell Reed Jr ruled out even this basic measure of
accountability as a violation of the free-speech rights of porn
purveyors and their often addicted customers.
Adding insult to injury, he said he was doing it for the kids:
"Perhaps we do the minors of this country harm if First Amendment
protections, which they will with age inherit fully, are chipped away
in the name of their protection." So, by protecting the right of smut
peddlers to exploit my daughter, Mr. Reed is actually protecting her
right to exploit other children when she's an adult. The logic, and
the arrogance, is breathtaking.
The Internet has revolutionized the way Americans conduct their daily
lives. All kinds of pornography -- from puerile convenience-store fare
to pornographic images of violence and depravity surpassing the worst
excesses of normal human imagination -- are now just a click away.
Indeed, children are accessing pornography at a previously unmatched
rate and with unparalleled ease. A recent study published in the
journal Pediatrics showed that 42 percent of children ages 10 to 17
had been exposed to online pornography in the past year; 66 percent of
the exposure was "unwanted."
Aware of its authority to regulate interstate commerce and of its
compelling interest in protecting children, Congress has tried for
more than 10 years to place restrictions on the distribution of online
pornography, but each attempt has been struck down in the courts.
Reed's ruling, which excuses online pornographers even from having to
check identification, is based on his view that today's software
filters would be more effective at protecting children. There is a
fundamental flaw in this reasoning that time and again has killed
congressional efforts to address a profound social problem.
First Amendment law requires that, when government seeks to promote a
compelling interest, the means used must restrict the least speech
possible. In this case, the government's interest is protecting
children from Internet pornography, the "speech" is pornography, and
the restriction is the ID check.
Reed objected to requiring pornographers to restrict their "speech" in
this temporary way because of the existence of software filters. But
inherent in a least-restrictive-means analysis is the expectation that
the "means" are actions taken by the government, not by private
actors. The "means" are legislative in nature, and therefore
mandatory, which is why they must not be overly broad.
Nothing in US constitutional law or history suggests that the people
are powerless to pass laws that further child safety. A 1968 US
Supreme Court decision ruled that states may consider that "parents
and others ... who have this primary responsibility for children's
well-being are entitled to the support of laws designed to aid
discharge of that responsibility."
Many such laws come to mind. Parents teach their children to say no to
drugs but the law also forbids drug sales to children. Parents warn
children of the dangers of guns but the law also throws gun dealers in
jail if they sell to children. Parents tell kids to stay away from
porn but the law also requires video and convenience store clerks to
Reed's decision says there may be no law governing the conduct of online
pornographers vis-a-vis children, that government may do nothing to
address a compelling public problem except hope that the market will
provide effective products for consumers and that these products will be
purchased and utilized.
Not only is this not how our laws work, but it also overlooks the
reality that the most sophisticated screening software can only be
effective where it is installed. Increasingly, children have access to
computers over which their parents have no control: at schools,
neighbors' homes, their own homes, and in libraries. And there's
certainly no guarantee that computers in any of these places will have
filtering software, or, if they do, that it is rigorous and effective.
Parental self-help measures are vitally important in protecting
children online. But they do not eliminate the need for legal
accountability for Internet pornographers nor do they supplant the
constitutional authority of Congress to take action to further this
The Child Online Protection Act requires no more of the porn industry
than what our laws have always required that they make reasonable
efforts to ensure that children are not among their customers. Reed's
ruling surrenders the Internet to a ruthless and exploitative industry
and nullifies an essential prerogative of civil society -- the
protection of children.
Cathy Ruse is a senior fellow of legal studies at the Family Research
Council in Washington.
http://www.csmonitor.com | Copyright 2007 The Christian Science Monitor.
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[TELECOM Digest Editor's Note: The astute reader will note that the
very same 'internet porn filters' which are so highly touted by the
judge were in fact the same system the internet 'experts' spoke
against along with the librarians when the librarians were the object
of government wrath a couple years ago. Librarians should not be
expected to use them, nor be held responsible for the use of them
per the 'experts' who testified in that case. But now, la-tee-dah, it
appears filters will work just fine. As a matter of fact, so much of
that trash comes in via email anyway instead of web page browsing. Oh
well, I have given up trying to worry about it so much anyway. If
there has ever been a federal judge who was not stupid, I have yet to
see him in action. The 'credit card as a method of ID' system was
working quite well. Does this latest stupid ruling serve as encourage-
ment to the porn guys to stop using even that modicum of protection?