Jacob Sullum

Congress has been trying to stop kids from seeing online pornography since 1996. Its first attempt, the Communications Decency Act, was overturned by the Supreme Court, and its second attempt, the Child Online Protection Act (COPA), seems destined for the same fate. The court already has upheld a preliminary injunction blocking enforcement of COPA, and a federal judge recently made the injunction permanent.

For more than a decade, then, parents have stood by helplessly as their children have been bombarded by dirty pictures. Well, not exactly. As U.S. District Judge Lowell Reed noted when he issued his injunction, filtering software used by parents and Internet service providers is much more effective than COPA would have been at keeping porn away from kids (or perhaps I should say "keeping kids away from porn," which better describes the reality of the situation).

The insistence that there nevertheless ought to be a law, which could still be heard in the wake of Reed's decision, betrays a disregard for the damage done to freedom of speech by heavy-handed efforts to make the Internet safe for children. It also reflects a knee-jerk statism that demands a top-down, one-size-fits-all solution even when diverse, decentralized responses clearly work better.

Reed concluded that COPA is both too narrow and too broad. It is too narrow because it does not apply to Web sites based in foreign countries, which account for something like half of online pornography. It is too broad because it covers not just pornography but any discussion or depiction of sexuality deemed "harmful to minors"--i.e., anyone under 17.

The law thus could apply to material, such as sex education, that is inappropriate for 3-year-olds, even if it's OK for 16-year-olds, never mind adults. COPA prohibits "commercial" sites (those that sell content or ad space) from making such material available to minors, threatening violators with a six-month prison sentence and fines of up to $50,000 a day.

Web site operators can escape those penalties "by requiring use of a credit card, debit account, adult access code or adult personal identification number" before allowing access to potentially objectionable text or pictures. Any such requirement would impose costs on Web sites, compromise readers' privacy and deter adult visitors. How likely would you be to cough up a credit card number for the privilege of reading an article?

Given this reality, Web sites would have a strong incentive to steer clear of anything sex-related that might be considered inappropriate for children. Without a single prosecution, the law could have a substantial effect on material available to adults.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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