Free-speech advocates to panel: Find constitutional ways to keep kids safe online

Tuesday, July 18, 2000

WASHINGTON – First Amendment experts urged a special study committee yesterday not to seek to protect children against Internet pornography by recommending measures that fail to pass constitutional muster.

Elliot Mincberg, vice president and general counsel for People for the American Way, Paul McMasters, First Amendment ombudsman for The Freedom Forum, and Marvin Johnson, legislative counsel for the American Civil Liberties Union, testified at the first meeting of a panel created by Congress to study ways to keep pornographic material away from children on the Internet.

The panel, which is chaired by former Attorney General Richard Thornburgh and is operating under the auspices of the National Research Council, is charged with developing possible amendments to federal criminal law or other law enforcement techniques to deal with the problem.

Two other witnesses, Bruce Taylor and Robert Flores, represented the National Law Center for Children and Families. Both are former prosecutors who told the panel that part of the problem is the reluctance of the Justice Department to prosecute Internet pornographers.

“The Justice Department has absolutely neglected its obligation to enforce the law in this area,” Flores said.

Taylor said if the government “prosecuted some of these cases,” there wouldn't be so many pornographic sites on the Internet. “There shouldn't be any child pornography in cyberspace,” he said.

Mincberg reminded the panel that every law so far aimed at restricting Internet content has been struck down by the courts as unconstitutional, and that seeming solutions such as Internet filters or rating systems have troubles clearing First Amendment hurdles as well. Filters or rating systems work if they give “optimum choice to a family,” Mincberg said. “The difficulty comes when there are mandates.”

Johnson said it is possible to protect children and comply with the First Amendment as long as certain things are kept in mind. When considering restricting content, he said, it is important to realize that what is being restricted is speech. Before heading in that direction, he said, there must be a compelling government interest, and the proposed rules must be narrowly tailored.

Johnson said this point was best made by Supreme Court Justice Felix Frankfurter in a 1957 ruling, Butler v. Michigan: “You cannot burn down the house to roast the pig.”

Where government frequently errs in its attempts to restrict, Johnson said, is by drafting provisions that are overly broad or too vague. A too-vague rule keeps individuals from knowing specifically what is prohibited, he said, so they are often compelled to “steer a wide path” around potentially objectionable activities. That has the effect of chilling speech, he said. An overly broad provision “sweeps away things that are constitutionally protected” as well as the intended target, he said.

“The First Amendment should not be viewed as an obstruction or something we didn't have to look at,” but rather as a vision guiding the panel in the proper direction, said McMasters.

He told the panelists that they need to remember that all existing blocking tools or filters are technologically based and as such “are at best temporary solutions. They will be worked around.” McMasters said “the only sensible approach” is to encourage parents to exercise greater responsibility for their children's actions and to better educate children and parents alike.

“The ideal strategy is education and voluntary efforts that enable parents, guardians and teachers to help children become Internet savvy,” McMasters said. “It is the only strategy that protects parents' rights to instill the standards and values they wish for their children. It is the only strategy that safely protects the First Amendment rights of both speakers and listeners. It is the only strategy that is safe from paralyzing legal challenge.”

McMasters told the panel that children are “remarkably resilient” and can both survive and thrive without having their First Amendment rights restricted. But Flores disagreed, saying there needs to be more focus on “the safety of the user.”

“It is not enough to say my kids are resilient,” Flores said. “I don't want them to go through that experience.”

Taylor said he didn't like proposals that would have Web sites rate themselves in terms of content because that wouldn't reach the problem areas. Instead, he said he favored provisions that would identify users of the Internet so that certain Web sites or browsers would know automatically that children should be blocked from some sites.

But Johnson said the panel needed to remember that anonymous speech is also protected by the First Amendment and mandating identifiers would infringe on that right.

Filters, however successful, cannot be 100% effective either, the First Amendment experts agreed, and will inevitably “over- or under-block” certain sites. But they said they have no problem with filters if they are used on a voluntary basis and do not block the rights of others to access materials under the guise of protecting children.

“I have absolutely no problem with filters or their accuracy rate,” McMasters said. “It depends on where they're used.”

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