The USA has taken nearly 10 years to decide, with a final ruling by the US Supreme Court, that mandatory internet filtering does not meet that nation’s constitutional protections. Here, the New York Times explains in an editorial why the result is the right one for America (and for Australia, where Communications Minister Stephen Conroy is trying ride roughshod over the rights of adult Australians).
A Win for Free Speech Online
A 10-year campaign to censor the Internet ended last week when the Supreme Court refused to step in and save the Child Online Protection Act. Everyone can agree on the need to protect children from sexually explicit online material, but this misguided law tried to do it in ways that infringed on too much constitutionally protected free speech.
Congress passed the Child Online Protection Act in 1998 after the Supreme Court had struck down an even broader law regulating online indecency. The 1998 act imposed civil and criminal penalties, including up to six months in prison, for offering commercial material online that was “harmful to minors.”
But the courts quickly blocked the law from taking effect, and it has been the subject of legal battles ever since. In July, the United States Court of Appeals for the Third Circuit, in Philadelphia, struck down the act, which it found to violate the First Amendment in a number of ways. Among other things, the court ruled that the law’s purpose could be better achieved, with less damage to free expression, if parents used filtering software to keep objectionable material away from children.
The Bush administration appealed that ruling, arguing that if it were allowed to stand, millions of children would be exposed to online pornography. But the American Civil Liberties Union, which had brought the original challenge, insisted that the act unconstitutionally stifled the free speech rights of adult Internet users — because it would cover more than just pornography that children may be seeing. The A.C.L.U. also has said that the act was ineffective since it did not regulate foreign Web sites, which are the source of much of the indecent material available to American Internet users.
In its ruling last week, the Supreme Court turned down the appeal of the federal appellate court’s decision without comment. Without the Bush administration pushing for more restrictions on online pornography, even some supporters of greater regulation believe their cause may be lost for the foreseeable future.
Society has a legitimate interest in keeping sexually explicit material away from minors. But as the courts have repeatedly emphasized, it cannot be done through a sweeping censorship regime. It is not likely that Congress will rush to take up online indecency again. If it does, it needs to follow the courts’ guidance and rely on methods — like filtering software — that keep indecent material away from children without infringing on the free expression rights of everyone else.
http://www.nytimes.com/2009/01/27/opinion/27tue2.html?th&emc=th