Governments’ efforts to restrict Internet speech they regard as dangerous have varied greatly. Islamic countries have focused on pornography and some forms of political speech. Some liberal Western democracies, such as the United States, have sought to censor or suppress sexually explicit speech, and others, such as France and Germany, have concentrated on virulent hate speech. It is instructive to consider the concerted efforts of the United States to restrict sexually explicit content and speech in cyberspace by means of command and control legislation.
The United States government first sought to deal with the pervasive problem of Internet pornography with a piece of legislation called the Communications Decency Act of 1996 (CDA). This ill-fated law criminalized the “knowing” transmission over the Net of “obscene or indecent ”material to anyone under the age of 18. Shortly after the CDA was signed into law, a lawsuit was immediately filed by the American Civil Liberties Union (ACLU) and several other groups, claiming that the CDA violated the First Amendment. One year after its passage, the Supreme Court struck down the law because it interfered with the First Amendment rights of adults to access websites with sexually explicit content. According to the majority opinion in Reno v. ACLU (1997) the act “suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.” Moreover, the law’s reference to “indecent” material was considered to be unconstitutionally vague.
In October 1998, however, Congress tried again, passing the Child Online Protection Act (COPA), which was immediately challenged by the ACLU. COPA was more precisely written than the CDA. It required Web site operators to restrict access to any material deemed to be “harmful to minors.” Such material had to be obscene or meet a new federal harmful-to-minors standard with three requirements (for example, the material “depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual conduct…or lewd exhibition of the genitals”).
The ACLU also challenged COPA and won its case in Federal District Court in Philadelphia and in the U.S. Court of Appeals for the Third Circuit. In 2002, the U.S. Supreme Court remanded the case to the Third Circuit, which again found COPA unconstitutional because it did not satisfy the First Amendment’s “least restrictive means” test. However, the case Ashcroft v. ACLU was appealed once again to the Supreme Court. That Court decided in 2004 to keep in place the district court’s order blocking the enforcement of COPA, but it remanded the case to the district court for yet another hearing.
Despite these setbacks, Congress did not abandon its efforts to contain the spread of pornography in cyberspace. In 2000, it passed the Children Internet Protection Act (CIPA), which was signed into law by President Bill Clinton just before his departure from office. With Children Internet Protection Act, the government sought to implicitly mandate the use of filters. It hoped to rely on private surrogates, libraries, and schools to regulate speech harmful to minors. According to Lessig’s paradigm, this regulatory regime is a clever combination of code and law.
Children Internet Protection Act is linked to the federal government’s e-rate program, which provides an opportunity for schools and libraries to be reimbursed for the costs of connecting to the Internet or to be subsidized for other telecommunications expenses. The law mandates that computer terminals used by all library patrons (i.e., adults and children) must have filters that block Internet access to visual images that are obscene or involve any sort of child pornography. In addition, library computer terminals used by children under 17 must filter out these two categories of material plus any visual material that is harmful to minors. Public schools seeking e-funds must implement the same type of filtering scheme.
In April 2001, a group of libraries and library associations initiated a lawsuit against the government, claiming that Children Internet Protection Act was unconstitutional. The plaintiffs argued that filters were imprecise and “blunt” instruments, inadvertently blocking out many Web pages that did not contain sexually explicit content. Some of the sites blocked by typical filters included those having to do with sex education, and others were related to health issues, including Columbia University’s question-and-answer site. Also, as the plaintiffs pointed out, technology protection measures cannot block access to all the material that is sexually explicit content, child pornographic, or harmful to minors.
