Last week, the US Senate finally passed the Internet censorship bill containing language that Congressman Rick White wrote two years ago. But now that public opinion has shifted to the First Amendment side of the debate, the Bainbridge Island Republican has changed sides. In a recent letter to top executives at America Online, Disney, and Microsoft, urging them to devise a “private sector” solution, White even pretends he had nothing to do with the new measure in the first place.
The oddest thing about White’s reversal is that he was right the first time. The new legislation, which restricts online content that is “harmful to minors,” not only avoids the constitutional pitfalls of the 1996 Communications Decency Act (the first congressional attempt to screen the Internet, it was struck down by the Supreme Court last year), but it also meets the very legitimate need to protect children from obscene material on the Web.
The new legislation, authored by Sen. Dan Coats (R-Indiana) and dubbed “CDA II,” takes its lead from two important Supreme Court decisions: Ginsberg v. New York (“It is not constitutionally impermissible… to accord minors under 17 years of age a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read and see”) and F.C.C. v. Pacifica Foundation, which upheld the federal government’s right to restrict the broadcast of such material. Coats’ bill essentially substitutes “harmful to minors” for CDA I’s “indecent,” on the theory that the “harmful to minors” standard, which has been upheld in other media by Ginsberg, can be extended to the Internet.
In 1997, the Supreme Court ruled that the 1996 CDA’s indecency standard was unconstitutional—a ruling that might have been avoided had White’s amendment adding the “harmful to minors” standard not lost by a single committee vote.
Now White says that he never really supported any type of online restriction, explaining that his 1996 amendment, which was composed with help from both the ACLU and the Christian Coalition, was only offered as a lesser of two evils. “It’s like every other problem in Congress,” White said in a recent interview. “If I and my colleagues have to solve the problem, it will be a worse solution than one from the technology industry itself. Congress is here as a last resort to solve problems that the private sector can’t.”
That said, even White admits that the problem of online pornography has only gotten worse over the past two years. On the congressman’s suggestion, we looked up the seemingly innocent word “teen” in a popular search engine. Here are the first five results: “Legal nude teen pictures,” “Teen blow jobs,” “XXX teen,” “Totally free teen pussy,” and “Lesbian teen lovers having sex sex and more sex with other lesbian teen Asians.” “It was our hope,” White wrote in a letter co-signed by Sen. Joseph Lieberman (D-Connecticut) to online executives earlier this month, “following the Supreme Court’s ruling striking down the CDA, that the Internet community would recognize the legitimate concerns underscored by the law’s passage, and that you would respond with a serious, sustained effort to limit the access of children to clearly inappropriate content.” White and Lieberman agree that little has been accomplished toward this end despite a high-profile White House summit on the issue last September and encouragement from almost every interested public official.
White’s suggested “private sector” solution would have online access providers like America Online and Microsoft choose which sites are appropriate for children. How the choice is to be made is left unclear; even White admits that current industry-provided solutions—”filtering” software, like the infamous NetNanny—are ineffective. By comparison with filtering, Coats’ CDA II seems far more effective and far less invasive, as it simply requires pornographers to allow access only to users supplying a credit-card number (as federal restrictions on 1-900 dial-a-porn enterprises do). Online AIDS information, abortion sites, and artistically meritorious nudes would not be affected by this bill as they are now by software filters, and as they might have been by CDA I.
White argues that federal law would be ineffective in battling online smut primarily because pornographers could easily move their operations abroad. His change of heart, though, more likely is due to his upcoming election battle, which most observers say will be a tough one. His district is rife with cybersavvy constituents and moderate conservatives who are generally suspicious of any kind of government intrusion into anything.
