SYMPATHY FOR THE PURITAN: THE OTHER SIDE OF THE CHILD ONLINE PROTECTION ACT

There may be no consensus on obscenity, but there certaintly seems to be a consensus among legal pundits that efforts to regulate porn on the internet are 1) patently unconstitutional; 2) motivated by intolerant puritans; and 3) doomed to fail anyway.

A classic example of this is Professor Jeffrey's Rosen's recent TNR article on the Supreme Court's decision to send Ashcroft v. ACLU back to a lower court for further study. In it Rosen mocks the Supreme Court's approach on obscenity law - saying that it was 30 years behind the times. Hard-core porn may have been outside the scope of decency in the 1950s, but in the year 2002 it is a thriving consumer industry.

I'll agree with Rosen that there is not a national consensus on which sexually explicit materials are appropriate for teenagers as well as adults. What I question is why that should be the critical issue on which the constitutionality of regulating porn turns. For while there is no consensus whether hard-core porn is harmful or harmless, it is ridiculous to assert that it is political. Thus, there is no reason for the dispute over what is obscene and how it should be regulated in this area to be removed from ordinary democratic discourse. In other words, this is a clear example of where constitutional doctrine has veered far from the core principles of the document. The Constitution checks the ability of democratic institutions to limit speech, because free speech is essential to keep democratic institutions accountable and democratic discourse alive. We have wandered from the logical proposition that other forms of expression have the same function to privileging anything anyone wants to claim as "self-expression."

Second, Rosen portrays the issue as what to do about 16 year olds looking for the Playboy previews (as opposed to looking at the SI Swimsuit issue on line). This is NOT the issue at the heart of COPA. Instead, the reality is that the Internet is full of 8-year olds who occassionally mispell words as they look for their favorite edutainment sites or who curiously like to type random phrases as weblinks. As anyone who has spent anytime on the web knows, the porn industry has cannibalized a ridiculous number of domain names so that misspellers, or those who confuse their .com with .org get bounced into an ever-repeating web off pop-up porn teasers. It's perfectly reasonable for parents, who do not want to have to look over their child's shoulder for hours on end, to want to be assurred that their cyberly gifted children not encounter the dark underworld of the net. (It's not as if we have adult bookstands on the next shelf over from Barnes & Noble, Jr.).

Finally, while COPA may not be the best way to achieve the aims of regulating the internet, the choices are not as stark as Rosen presents them. The real problem with requiring people to use age verification to view adult sites is not they are unduly restrictive, but that our privacy laws are so woefully behind the technological curve that people are rightly afraid of the consequences of what will be done with their verification information. Strenghening privacy laws can help in building a functioning rating system. Another idea that could at least address the problem of unwanted porn is the idea of cyber-zoning. Why can't their be domain ranges for adult sites? This would greatly ease the problems faced by filtering software, and unwanted pop-up ads that punish cyber-errors. There are sensible solutions here - the right combination of laws and technology can make the internet both free for adults and safe for children.