Thesis: Because first amendment protections and laws protecting Internet Service Providers impede a great deal of government regulation, the best way to ensure minors are protected from improper content online is to empower individuals, companies and organizations to take the intiative to self-regulate.

Citation: Reno v. ACLU 117 S.Ct. 2329. 1997. Cornell Law School. 4 April 2009. <ttp://www.law.cornell.edu/supct/html/96-511.ZO.html>.

This source is a Supreme Court decision that curtailed the federal government's ability to prohibit that could be harmful for children.   The laws in question were provisions of section 223 of the Communications Decency Act of 1996 that prohibit knowingly transmitting "indecent" and "patently offensive" material on the Web to minors.  The Supreme Court ruled that these provisions were unconstitutional, and upheld the ruling of a lower court, because they violated the first and fifth amendments of the Constitution. The court believed the terms "indecent" and "patently offensive" were too broad, and could restrict content that is actually not harmful.  Additionally, the provisions were struck down because the court felt there was no good way to specifically target and identify Internet users under the age of 18, making this law difficult to violate or enforce.  The portions of the law that prohibited knowingly transmitting obscene materials and child pornography to minors were upheld, because obscene content warrants less free-speech protection than indecent content.  In the decision, written by Justice Stevens and agreed to by a large majority of the justices, there was also an overview of the history of the Internet and an explanation as to why cases upholding government laws monitoring commercial interests to protect children did not apply to this case.

Reno v. ACLU relates to my paper because it is a court case imporatnt to the ongoing battle to determine how best to protect children from harmful content online.  If free speech bars the government from protecting children from certain types of potentially harmful content, then government regulation is not going to be the only solution needed to help shield children.   However, since the government can pass laws regulating obscenity and child pornography, this case does demonstrate that there is a place where government regulation could potentially be helpful and useful.  Stevens' decision would support my thesis, because the difficulty he acknowledges in detecting the age of Internet users makes it difficult for any organization to properly filter content. In order for children to be protected from some content, there will need to be intrinsic motivation for indecent websites to self-regulate and to try not to reach children.

 

Citation: Etzioni, Amitai.  “On Protecting Children from Speech.” Chicago-Kent Law Review. 2004: 3-53. Google Scholar. 5 April 2009. http://lawreview.kentlaw.edu/articles/79-1/Etzioni.pdf

 

            This article discusses and analyses the issues concerning children’s rights to free speech.  According to the author, past court cases care more about how restricting access for children would inadvertently affect adults than they do about how there is a compelling state interest to protect children from harmful speech.  To remedy this, Etzoini thinks Internet access for children and adults should become separate.  Where it is not possible to make a separation, government regulation is needed, because voluntary measures, such as parents choosing to purchase filtering softwares, are generally ineffective.  A review of research studies concludes children can be harmed by viewing objectionable media content, although this has been more definitely proven for violent content than for pornography.  Etzoini also says that as children get older, they should have greater free speech rights, and should have their content restricted less.

 

            The article provides a counterargument to some of the other documents published concerning how children can be protected from harmful content on the Internet. The Supreme Court cases concerning section 223 of the CDA and COPA were struck down in part because it was believed that there was truly no way for to restrict content for children without also inadvertently restricting it for adults.  Etzioni, however, believes there may be ways to separate Internet access based on age. Additionally, this article differs from the arguments made by Thierer, because it  favors governmental regulation of content over self-regulation. Etizoni’s reason for the ineffectiveness of voluntary regulation does however relate to a concept Thierer discusses – that of self efficacy.  If people’s motivation to filter the Internet content of minors, self-regulation could potentially work. The problem right now is that efficacy is too low for people to want to take an initiative and regulate content.

Citation: Ashcroft v. ACLU 542 U.S. 656. 2004. Cornell Law School. 4 April 2009.  <http://www.law.cornell.edu/supct/html/03-218.ZS.html>.

This document is a Supreme Court decision that ruled the Child Online Protection Act (COPA) unconstitutional.  COPA, a law passed by Congress, established a $50,000 fine and six months in prison for knowingly posting content online for commercial purposes that is harmful to minors.  A person could avoid conviction for posting such content by making a concerted effort to have prevented minors from having access to the content.  The justices ruled that COPA was unconstitutional because it restricted some speech protected by the first amendment of the US Constitution.  The definition of content harmful to minors is broader than the definition of obscenity, which is the type of speech not protected by the first amendment.  In the decision, Justice Kennedy also wrote that there were probably more effective alternatives to govermental regulation, such as encouraging parents to use filtering software.  According to the majority opinion, the government is only allowed to restrict free speech as much as it is absolutely necessary to achieve its desired goal, and there was no proof that free-speech had to have been curtailed as much as it was in COPA in order to protect children.

 

            Ashcroft v. ACLU is important because it helped to define the legal restrictions on governmental regulation of Internet content for purposes of protecting children.  This case is similar to Reno v. ACLU in that laws were struck down on first amendment grounds because they restricted types of protected speech.  Congress tried to fix the mistakes it made with the CDA by having COPA apply to material harmful to minors, rather than to indecent material.  However, the Supreme Court still thought that content harmful to minors was too broad a terminology using a strict scrutiny approach to the law. The court case is also relevant to my paper because it explains how the government could legally help regulate Internet content. By suggesting Congress protect children from potentially threatening content by promoting use of filtering software, Kennedy is essentially laying out for Congress what he believes to be the most constitutionally acceptable method of governmental online content-regulation.  Note that by promoting filtering, the government would be indirectly involved with regulation, implying the government cannot fix the problem of youth exposure to harmful content alone.