House subcommittee endorses Child Online Protection Act

Friday, September 18, 1998

Congress yesterday took another crack at regulating Internet decency when a House subcommittee approved the Child Online Protection Act, a measure which would criminalize the commercial online distribution of material that is “harmful to minors.”

The House Telecommunications Subcommittee voted unanimously for the bill sponsored by Rep. Michael Oxley, R-Ohio. Oxley's bill is nearly identical to a Senate measure sponsored by Dan Coats, R-Ind.

The Coats bill has been dubbed the “Son of CDA” or “CDA II” in reference to the ill-fated Communications Decency Act of 1996. The U.S. Supreme Court struck down provisions of the CDA that criminalized “indecent” or “patently offensive” online communication in Reno v. ACLU in June 1997.

The high court found these provisions of the CDA unconstitutional in part because they were not limited to commercial Web sites and would be unduly burdensome for noncommercial sites. In response, Coats and Oxley introduced measures that they contend target only commercial pornographers.

Oxley's measure would employ a “harmful to minors,” rather than an indecency standard. Generally speaking, a harmful to minors standard would apply to less material than an indecency standard.

In Reno v. ACLU, the Supreme Court noted that the CDA did not define indecency and omitted any requirement that the material must lack serious literary, artistic, political or scientific value. On the other hand, most harmful to minors provisions — including the Oxley bill — are defined as containing material that, taken as a whole, lacks serious literary, artistic, political or scientific value for minors.

The Oxley bill would require that “whoever, in interstate or foreign commerce, by means of the World Wide Web, knowingly makes any communication for commercial purposes that is harmful to minors to any minor shall be fined not more than $50,000, imprisoned not more than 6 months, or both.”

The measure would provide protection for those charged under the act who restrict minors' access to harmful material by “requiring use of a credit card, debit account, adult access code, or adult personal identification number” in verifying a user's age.

After the subcommittee passed his legislation by voice vote, Oxley stated: “Forty years of research in the field of child development demonstrate that exposure to sexually explicit images harms the psychological development of children. It is our responsibility to act to help protect young people from the corrosive, debasing effects of the graphic adult content available on the World Wide Web.”

Oxley also said that “acting to clean up the Web will help convince parents and consumers that the Internet is a safe place to learn and to transact business.”

David Sobel, general counsel for the Electronic Privacy Information Center and a member of the audience attending the subcommittee meeting said that a few House members expressed “some concerns” but that “all the members seemed to think that the bill was within the bounds of the First Amendment.”

Bruce Taylor, president and chief counsel for the National Law Center for Children and Families, says the bill does not violate the First Amendment.

Sen. Dan Coats...
Photo by AP
Sen. Dan Coats

“Obviously, we have been supporting the Oxley and Coats bills because they are a much-needed solution to the problem of pornographers handing out free teasers to kids on their commercial Web sites,” he said.

Taylor, who helped draft both the original CDA and the latest measures, maintains that the Oxley bill is constitutional.

“The Oxley and Coats bills … are different than the CDA in two important respects,” he said. “First, they are limited to commercial sites on the World Wide Web and do not apply to nonprofit organizations. Secondly, the bills both employ the harmful to minors standard rather than a general indecency standard.

“I've heard some saying that the Oxley bill would prohibit the publishing of the Starr report,” Taylor said. “Such a notion is absurd, because again this bill does not apply to nonprofit or government Web sites. Furthermore, the Starr report would not qualify as harmful to minors because it has serious political value.”

However, many cyber-liberty advocates warn that the Oxley measure is, like the CDA of 1996, unconstitutional and tramples on adults' free-speech rights in the name of protecting minors.

Elliot Mincberg, legal director for the People for the American Way, said: “The fact that Oxley's bill uses the harmful to minors standard and applies only to commercial Web sites makes it in some respects not as bad as the Communications Decency Act. However, there are still a number of constitutional problems with the bill.”

Foremost among these problems, Mincberg says, is the fact that the law still “reduces adults to reading that which is fit only for children.” He says that the Supreme Court in Reno v. ACLU found that while government has a 0compelling interest in protecting minors, that interest does not justify unnecessarily suppressing the free-speech rights of adults.

Both Mincberg and Sobel say another problem with the legislation is that it attempts to apply “community standards” on a national basis. Sobel says this could mean that “the most conservative community could determine what is appropriate for the Internet.” Mincberg agrees that the legislation would “reduce everything to the lowest common denominator.”

“Does it make sense for someone from Las Vegas to be judged by the standards of someone in Salt Lake City?” Mincberg asked.

Ronald Weich, legislative consultant for the ACLU, said: “This bill is as unconstitutional as its predecessor. Efforts to regulate the Internet are doomed to failure.”

David Greene, program director for the National Campaign for Freedom of Expression, agrees, saying that “the Oxley bill, even though it applies a different standard, does not solve the constitutional problems [of the CDA]. The reach of the law is still uncertain, it will still criminalize constitutionally protected speech, and, by requiring age verification systems, it will still be financially burdensome to some speakers.”

The measure now passes to the full Commerce Committee for consideration.