Protecting civil liberties is an exercise in déjà vu. On March 20, 2001, for the third time in five years, the American Civil Liberties Union filed suit in the Third Circuit Court of Appeals in Philadelphia seeking to enjoin a federal law aimed at protecting children from the ravages of the Internet.
First, the ACLU successfully challenged the Communications Decency Act of 1996, which prohibited "indecency" in cyberspace and was struck down by a nearly unanimous Supreme Court. Then Congress enacted the Child Online Protection Act (COPA), criminalizing the commercial dissemination of speech deemed "harmful to minors;" the ACLU went back to the Third Circuit, which invalidated COPA (in a decision that may also be reviewed by the Supremes). Now, along with the American Library Association, the ACLU is challenging the Children's Internet Protection Act (CHIPA), which conditions federal support for the nation's public schools and libraries on the installation of blocking software on computers.
Supporters of CHIPA sometimes argue that the use of censorware represents an ordinary exercise of discretion by librarians and school administrators, who regularly edit material available to kids (devising a curriculum is partly a process of elimination). But in fact, the use of blocking software delegates discretion to the anonymous employees of publicly unaccountable companies like Cyber Patrol and Net Nanny, who decide which sites will be blocked. Parents who take comfort from these programs might as well randomly select a group of people from the subway to monitor their children's reading habits.
The problems with CHIPA are as obvious as the limitations of blocking software, which have been frequently chronicled. (See Geoffrey Nunberg, "The Internet Filter Farce," TAP, January 115, 2001, or the March 2001 issue of Consumer Reports, which confirms the software's unreliability.) Filtering programs are blunt instruments that censor a range of Web sites unquestionably protected by the First Amendment--Web sites of organizations ranging from Planned Parenthood to the U.S. Army Corps of Engineers; even a map of Disney World has fallen prey to the whims of cybercensors. Almost everyone's ox is likely to be gored. One former Republican candidate for Congress has joined the ACLU suit because Cyber Patrol blocked his campaign Web site, which broadcast his positions on numerous issues, including the use of blocking software (he was for it).
Congress engages in self-parody when it passes legislation like CHIPA. But the consequences of this stupid law will not be funny. Critics have charged that it will widen the digital divide: If CHIPA is effectively enforced, it will arbitrarily limit the pool of information and ideas available to children from low-income homes, who must depend on school and library computers in order to access the Internet.
But fear of the Web and other media are stronger than appreciation of their benefits, especially with regard to kids, who are supposedly endangered by popular culture. You can't control culture without controlling speech, as many are hungry to do in the belief that they would be regulating behavior or harm, not expression. People often assume that speech they deem offensive causes serious harm; or they believe that offensiveness itself constitutes harm. ("It's not about censorship; it's about harassment," the politically correct are apt to say.)
There is, however, little question that the Constitution--not to mention a regard for free speech in general--requires proof that speech causes actual harm before it can be prohibited. In March the estimable Judge Richard Posner of the Seventh Circuit Court of Appeals reaffirmed this principle in an opinion enjoining enforcement of an Indianapolis, Indiana, ordinance that would limit minors' access to violent video games. In American Amusement Machine Association v. Kendrick, Posner stressed that the government's claim that violent video games incite violence was entirely unsubstantiated. The few studies cited by the city did not show that "video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere."
Conventional wisdom about the harm of violent video games and other media often persuades legislators to prohibit unpopular speech, but it is not evidence in a court of law. "The grounds [for suppressing speech] must be compelling and not merely plausible," Judge Posner observed. Besides, he suggested, the harm of censorship is as plausible as the harm of violent speech.
People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble. No doubt the City would concede this point if the question were whether to forbid children to read without the presence of an adult the Odyssey, with its graphic descriptions of Odysseus's grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, or hanging the treacherous maidservants.
I wish I had so much faith in government officials. School administrators regularly censor respected works of literature (like Huckleberry Finn) to mollify angry parents; sometimes all it takes to ban a book is one or two complaints. "It's not about censorship, it's about protecting children," the censors will say. But depriving kids of access to information, ideas, and their choice of literary pleasures seems more like punishment than protection to me. Once, the juvenile courts deprived children of due process rights in order to protect them. I'm often suspicious of child savers.