COLUMN: Moral policing of Internet not government's responsibility

Claire Vannette
University Wire
05-24-2001
(The Guardian) (U-WIRE) LA JOLLA, Calif. -- Our government takes on many roles: provider for the poor, supporter of business, dispenser of justice and member of the world's community. These roles can be contradictory at times, but they all aim to serve the nation's needs in a just manner by balancing the desires of competing groups and protecting our constitutional and human rights.

In recent years, another role has been attributed to the government: monitor of morals. In a movement that transcends partisan differences, Democrats such as Tipper Gore and Sen. Joseph Lieberman and a wide range of Republicans, including Sen. John McCain, assert that it is the government's responsibility to limit the access that minors have to "indecent and/or obscene materials."

Indeed, 1998's Child Online Protection Act, passed by a Republican House and signed into law by former President Clinton, states that "the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them is a compelling governmental interest."

However, COPA was blocked by a federal appeals court in a suit brought by the American Civil Liberties Union.

Citing the measure's unconstitutionality, the court issued an injunction prohibiting the enforcement of the bill, which calls for up to a $150,000 fine and six months imprisonment for anyone who offers material "harmful to minors" without making sure that only adults have access to the product in question.

Attorney General John Ashcroft has asked the U.S. Supreme Court to review the case; the court has agreed and will issue a ruling in October.

A lot is at stake in the court's consideration, and while the outcome is far from assured in light of recent accusations that the court is increasingly responding to partisan influences, the correct course of action is clear. COPA is unconstitutional, much like the Communications Decency Act that was struck down by the Supreme Court the year before.

Furthermore, COPA is clearly motivated by the determination of individuals to assert their morality on the rest of our country rather than a desire to "shield" minors.

The ACLU's challenge of COPA in 1998 was straightforward: It asserted that the measure would not merely prevent minors from viewing objectionable material, but would also infringe upon the right of adults to view these constitutionally protected images, articles and recordings.

COPA would monitor Web sites with sexual content, for example, by providing a credit card number or an adult access code such as AdultCheck (which requires a credit card number to secure). This would prevent adults without credit cards from accessing sexually explicit material on the Internet -- a disappointment to countless college students.

Additionally, the high cost of securing such a security service, which according to ACLU, can range from $300 to more than $1000, could drive many smaller providers out of business and thus further limit the material's availability to adults.

These effects amount to an unconstitutional limitation of what adults can view. It also reveals the bill's supporters' true intent: to diminish the profitability and prevalence of online pornography vendors. They would use the government to further their vision of a moral society -- a use not entitled to the government if the means to that end infringe upon the Bill of Rights.

COPA is also overly broad in its definition of material that is "harmful to minors." It extends the definition from material that is "obscene" to anything that portrays "an actual or simulated normal or perverted sexual act ... a lewd exhibition of the genitals or post-pubescent female breast" or anything that "lacks serious literary, artistic, political or scientific value for minors."

For legislators to attempt to determine what sex acts are "normal" or "perverted" is clearly out of line. This leeway further reveals the true nature of their attempt to police the morals of the country.

Further, what is "lewd" to one may be in perfect taste to another. There are some who object to pictures of Michaelangelo's "David" being exposed to children. COPA purports to account for this by asserting that the standards used to judge material should be those of "the average person" or the "contemporary community."

However, because of the nature of the Web, what would in the end prevail are the standards of the most conservative community with Internet access. It is easy to imagine an organization that views information about safe sex as "patently offensive" (in the bill's language) as one that would require an adult check on Planned Parenthood sites, although this information is indispensable to minors who are or are not sexually active.

The fact that the Internet transcends geographical borders also points to another of the bill's weaknesses: It is completely ineffective in "protecting" children from sexually explicit material because it has no jurisdiction over Web sites based outside the United States.

Pornographers can easily set up shop in Canada, France or Singapore and create Web sites with myriad portrayals of sex acts that would make the most lascivious of libertines blush -- and there is nothing our government can do about it.

Furthermore, if a credit card is all that is required to access these naughty Web sites, there is little to stop a prurient-minded 13-year-old from snatching Mom's Amex from her purse when she is not paying attention and copying the number into his Trapper Keeper.

COPA is not only unconstitutional, it's ineffective, and the Supreme Court should do its duty to uphold the Constitution and strike down this act once and for all in October.

Of course, underlying this issue is the question of what exactly is "harmful to minors." The legislators who drafted COPA think they know, but the ACLU pointed out that what is harmful to a 5-year-old may not be to an older minor. However, the whole idea that sexual images and descriptions are actually psychologically damaging to children reveals America's inescapable sexual puritanism.

Unquestionably, there are some disturbing materials on the Web, television, the evening news, in the movies, and in the New York Times, but is looking at Playboy.com going to scar little Johnny for life? It is a possibility, but the advisory board for the drafting of COPA did not include developmental psychologists to tell us exactly how sex "harms" America's children.

What is truly harmful to our nation is the idea that the government is responsible for parenting our children and policing our thoughts and desires. The industry has developed software such as NetNanny, which blocks sexually explicit material without infringing on the constitutional right of adults to peruse sexual material on the Internet.

Pornography may not be everyone's cup of tea, but the government quite clearly has no right to impose itself as a moral regulator.



(C) 2001 The Guardian via U-WIRE