Published in The Idaho Statesman July 20, 2000
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Who could be against protecting children online? Oddly enough, some child welfare advocates are accusing the federal court system of standing in the way of protecting children from pornography and other cyberspace threats. When the courts recently ruled against new legislation intended to protect children from unsavory Internet influences, child protection activists cried foul. If they had looked a little closer, however, they could have seen that the proposed solution would have been worse than the problem. Last month, the US Court of Appeals upheld an injunction against the Child Online Protection Act, or COPA, a 1998 law that would ban making material defined as “harmful to minors” commercially available over the Internet to children. While this was only a preliminary ruling, the decision has set the tone for what promises to be a key First Amendment case for the Internet age. The new standards were designed by Congress as a response to the Supreme Court's 1996 decision in Reno v. ACLU, where the court struck down a similar law, the Communications Decency Act (CDA), on the grounds that it was too vague and overreaching. Despite the best efforts of lawmakers to sidestep the Bill of Rights, however, the current regulations have the same flaws. This isn't just an intellectual dilemma for constitutional scholars. The problems with COPA demonstrate the real-world consequences of violating the principle of free speech. Legitimate, non-pornographic business owners will be forced to censor their Web sites or go out of business, depriving Internet users of valuable news, medical information, and other material. COPA will sentence the adult population of America to online communication that is only fit for children, and won't even fix the problem it was created to solve. Despite being written to avoid the vagueness that killed its predecessor, COPA can't overcome the problem of defining exactly what is harmful to minors. It's definition creates uncertainty as to what is prohibited and opens the new rules up to arbitrary and discriminatory enforcement. The district court issued its original injunction against the current censorship legislation in part because it would likely limit a great deal of legitimate, non-pornographic Internet discourse. New sites, such as the popular salon.com, medical sites, such as OBGYN.net, art stores such as ArtNet, and other online business would be forced to close or censor their sites if COPA goes into effect. Not only are the restrictions contained in COPA unconstitutional because of their chilling effect on legitimate speakers, it won't even be able to achieve its stated goal of protecting children from pornography. So instead of focusing on Web sites, those interested in protecting minors from pornography should turn to individual users. Access to pornographic material (even from international sites) can be limited by use of software filter installed on the home computer. Such filters–SurWatch, NetNanny, S-Stop, CyberPatrol and Cybersitter–are becoming standard issue with a new PC or online service. Most important, though, is parental involvement. Parents who personally monitor their children's Internet activity will be able to have more control than either legislation or filtering software could ever provide. After reviewing the flaws of COPA, it seems likely that, regardless of how carefully lawmakers craft bills to avoid judicial scrutiny, censorship of the Internet will remain not only impractical, but contrary to the principles of the First Amendment. The Child Online Protection Act is a misnomer; if we really want to protect our children, we should protect the basic principles of liberty–such as free expression–that make a free society possible. Dan Alban is a research assistant at the Competitive Enterprise Institute (www.cei.org), a free-market think tank in Washington, DC.