Congress wants to protect children from Internet "smut." So, first they pass a broad criminal law covering indecent material, even if it's nonprofit. The Supreme Court says no dice, while discussing the importance of the Internet -- it is only right that one of the major uses of the net is used as a means to honor its overall importance. Seriously, sexually explicit speech often is quite valuable, teenagers have free speech rights, and the rules are just too vague to pass a smell test.
Congress tried again. This time it stuck to commercial sites that are "harmful to minors" with credit card or other methods to block access as a way around such a prohibition. The Court splits over what standard should be used (the main opinion accepted the local standards rule used in obscenity even though the Internet is a [inter]national entity) but overall agreed the lower court should have held hearings before overturning the new law. Justice Stevens would have overturned the law right away.
Meanwhile, the Court allowed a law that based federal funding on the use of filters in libraries. Boo. Anyway, the "Child Online Protection Act" is back again. And, the Court ... sent it back again. In a 5-4 decision, the majority suggested that filtering -- though inexact -- might very well provide a "less restrictive means" to serve the state interests here. So, the lower court (who rejected it on other grounds) should determine if the current state of technology would do the trick. Other techniques such as a "kids friendly" domain name and a provision against misleading domain names also were noted.
I heard this case discussed today and a few parents voiced concern about the Internet. One argued parents have the responsibility to tell their children "no," which is a bit naive, since they are not always around. Another voiced concern of spam emails and such, but this suggests the ability of some narrow focusing. For instance, emails meant to mislead the reader is a special matter. Ditto spam in general. Perhaps, we can also have special "kids emails," and parental controls provided by most Internet providers is yet another option. None completely successful, but neither is this law, the nature of which is so crass that it's either overkill or not likely to be applied except in select instances.
Justice Breyer (in dissent) rightly notes that the slow water torture on this matter is getting ridiculous, but his acceptance of the law is troubling. Those like himself that want to provide a "middle way" at times ignore the fact that our liberties are not just things to be balanced. Yes, it's better than Justice Scalia who apparently thinks "speech" somehow has a "commercial pornography" exception, but only as a matter of degree.
Justice Stevens (with Ginsburg) in his concurrence that would do away with the law right away explains why. First, if we are going to outlaw obscenity at all, a national medium must be tested by a national standard. Second, given obscenity is such a nebulous concept that threatens freedom of speech, a criminal ban is just too harsh. Third, the use of filters provides a less harsh means. Again he eloquently puts forth what is at stake here:
COPA's criminal penalties are, moreover, strong medicine for the ill that the statute seeks to remedy. To be sure, our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. As a parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing habits.
The ability of the next President to be largely responsible in the selection of Justice Stevens' replacement is enough of a reason not to trust the presidency with someone whose track record in judicial picks are suspect. The complex divisions of recent cases suggest the calculus we use in such judgments are not as simple as some might suggest. The fact Justice Thomas (who is a strong believer in freedom of speech in various ways) joined the majority might not make people like him a great choice, but it does select simplistic litmus tests might be foolhardy in certain contexts. After all, did not his own selection process make this oh so clear?