In the name of children, the U.S. Supreme Court was asked on Wednesday to uphold criminal penalties of up to two years in prison for those who make "patently offensive material" available on the Internet.
But the Communications Decency Act wasn't really passed to protect children. It was passed to win the votes of their parents, the baby-booming Luddites who fear a world they don't know.
Our ignorance is no excuse for shredding the First Amendment. We owe better to our kids.
The Communications Decency Act of 1996 makes it a federal crime "to send or display" to a person under 18 any image or communication that "in context depicts or describes, in terms patently offensive as measured by the contemporary community standards, sexual or excretory activities or organs."
Enforcing this law would be virtually impossible, even if its constitutionality were upheld.
What counts as "patently offensive" obviously depends upon the community _ but what community? The world of cyberspace? The community of users? Or the people who happen to live in the same town as a kid who accesses a site?
Is there no difference between a 7-year-old and a 17-year-old? What if the kid came looking for the material?
And what happens to traditional notions that each country's laws govern within its borders? Is a web page in China subject to American law? How does any government control a global information network that transcends all those other lines?
On the other hand, the politics are simple. Regulation of pornography unites the most radical of the feminist left with the most moralistic of the conservative right. Adding the Internet allows this unholy alliance to appeal to all the parents in the middle whose kids know more about computers than they do. And perhaps the most popular argument in favor of regulation is that baby-boomer parents cannot be expected to police what their children look at.
Indeed, the administration's brief to the Supreme Court goes so far as to argue that it is precisely because of the Internet's value to young people that regulation is required _ because without it, their parents will banish it from their homes. In the revenge of the Luddites, logic is turned on its head.
There is a very simple answer for parents who feel lost in the new world of communications: Learn. Don't depend on the government to protect and supervise your children.
There are any number of commercial devices available that allow you to screen your children's computer usage, and the market can be expected to produce more.
Of course, no one can watch their children all the time. "Any child with a computer can access vile pornography in a matter of seconds," charges anti-pornography activist Donna Rice Hughes. And any child with cash can buy drugs _ in some areas, even a gun _ nearly as quick. Cars are far more dangerous than computers. If you can't trust your kid, Internet access is the least of your problems.
Supporters of the law's constitutionality liken it to regulation of cigarettes, gambling and other vices, but so far, there have been no takers for that argument from within the judiciary. The First Amendment does not protect the right to gamble; it does protect the right to speak freely, even if some might find that speech "patently offensive."
A federal judge in Philadelphia enjoined the statute last February, and a three-judge panel then struck it down as unconstitutional in June.
It is the role of the Supreme Court to keep our fears from trampling our liberties. As for Congress, if they're so worried about children, why not feed them or provide them with medical care _ or computers?