Slippery standards

Jacob Sullum
Posted: Dec 04, 2001 12:00 AM
The ubiquity of the World Wide Web is the main reason parents worry about it: Curious kids can peruse pornography from any location where they have unfettered online access. But the Web's lack of geographic specificity is also the main reason it's hard to address such concerns through legislation. Consider the Child Online Protection Act (COPA), which seeks to shield kids from sexual material deemed "harmful to minors." The law's definition of this term hinges on "contemporary community standards" -- which, unlike the Web, vary from place to place. In a decision the Supreme Court is now reviewing, the U.S. Court of Appeals for the 3rd Circuit upheld an injunction barring enforcement of COPA on First Amendment grounds. Since Web content cannot be customized based on a user's physical location, the court noted, COPA "essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards." The consequences of failing to do so are severe. A publisher whose "harmful" material is available to minors can be fined $50,000 a day and go to jail for six months. Publishers can avoid these penalties by requiring a credit card or using some other method to verify each visitor's age. But such procedures involve substantial costs, including the work required to identify and segregate material that might be covered by COPA. Screening also would discourage adult visitors who are leery of supplying personal information or annoyed by the inconvenience, which would shrink the audience for any content that wasn't suitable for all ages. And publishers would still have to worry about whether they guessed right in trying to predict which content might get them into trouble. Even material they would let their own children see could be deemed harmful to minors by a jury in another part of the country. The upshot of this uncertainty would be self-censorship. Rather than risk fines and jail, publishers would either stay away from sexual topics or sequester anything that could conceivably raise an eyebrow in Utah, even if most parents would not find it objectionable. The House committee that worked on COPA conceded that "the applicability of community standards in the context of the Web is controversial." But it said the law's definition amounted to "an 'adult' standard, rather than a 'geographic' standard, and one that is reasonably constant among adults in America with respect to what is suitable for minors." Defending COPA before the Supreme Court, Solicitor General Theodore Olson suggested there is enough of a consensus on this issue that enforcement could be based on a national standard. That's hard to believe. In 1973 the Supreme Court said attempting to formulate a single national standard for obscenity (speech that, unlike the material covered by COPA, receives no First Amendment protection) would be "an exercise in futility" because America was "simply too big and too diverse." The nation has not gotten any smaller or less diverse in the last three decades. If anything, there is more disagreement than ever about which forms of expression are praiseworthy or execrable, tolerable or intolerable. Judging from the heated debates about movie ratings, CD labels, sex education and school library books, the differences are no less pronounced when the topic is what should be presented to children rather than what should be legal for adults. Parents are bound to disagree, for example, about whether teenagers should have online access to information about "safe sex" or to fiction with erotic themes. The attempt to make the Web child-safe is not only unfair to adults and to minors whose parents are less strict than the jurors hearing COPA cases. It is also doomed to fail. Kids who are not clever enough to impersonate adults by using numbers copied from their parents' credit cards will still have access to pornography originating in other countries. And they will still be able to see lots of potentially objectionable stuff -- violent images, racist diatribes, anti-Semitic propaganda -- that has nothing to do with sex. Parents who are worried about bad online influences can use filtering software, which is still clumsy but getting better. They can also rely on services such as AOL to block inappropriate content, or they can let their kids use the Web only with supervision. But at some point they will have to decide where to draw the line for their own children -- a judgment that strangers in a jury box are in no position to make.