Censorship and the Internet

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   The foundations of America and of its citizens' individuality were built over 200 years ago with the creation of the Constitution and the Bill of Rights.  The First Amendment, ratified December 15th 1791, is probably the most important Amendment as well as the most difficult one to interpret.  It states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (National Archive Constitution Ammentment#1).  Thus, this Amendment grants Americans specific inalienable rights and allows them to be at least somewhat separate from the government.  Still, it is this Amendment that is under particular scrutiny in today's information age.  It is through the interpretation of this statement that we must assess the rights of the Internet surfer, determine what responsibility the government has to censor any or all explicit pages from innocent under aged children and evaluate if that censorship violates our inalienable rights as American citizens. Yet, no matter what censorship rulings the government passes, the responsibility of monitoring Internet use must ultimately fall in the hands of the parents.

Just a week ago (April 5th 1999), The Justice Department appealed an Anti-Censorship ruling made by the Federal Judge, Lowell Reed, of Pennsylvania.  Reed had the opportunity to evaluate and rule upon the Children's Online Protection Act (COPA), Congress' second attempt to regulate content on the Internet1.  Judge Reed rejected this act on grounds that it was in direct violation of the first Amendment.  He argued that "the first Amendment was designed to prevent the majority, through acts of the Congress, from silencing those who would express unpopular or unconventional views" (speech1).  Reed continued to demonstrate that before the widespread use of the Internet the ability of a person to express his or her views to a large group of people was limited by " the costs [of] reaching the masses" (Reed Text 1).  Before the Internet, people who wanted to express their ideas had to pay great amounts of money for advertisements and propaganda to promote their views.  It was very difficult for an individual, especially one without a lot of money, to get his or her ideas out to the public - the Internet allows the individual to do so in an inexpensive way.

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"Censorship and the Internet." 123HelpMe.com. 25 Jun 2018
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  Another judge remarked that the World Wide Web is the 'most participatory form of mass speech yet developed [and] the Internet deserves the highest protection from government intrusion' (Baase 206).  While Reed believes that the Internet provides a unique and inexpensive tool for all people, even those with unconventional views, he does not deny that "with freedom come consequences" because he knows that the ease of web browsing through search engines " make it a potentially harmful media for children".  He believes that it is important for there to be a medium, like the Internet, that allows for the widespread and inexpensive expression of ideas and that any restrictions, censorship, of this medium would be a direct violation of the first Amendment.  While Reed understands that the lack of censorship may lead to the expression of ideas that are inappropriate for children, he believes that the monitoring of the Internet should fall in the hands of the parents and not the government. 

If a child who wants to look (via the Internet) for new toys to add to her Christmas wish list, she might go to a web browser like Excite or Yahoo and type in "toys".  If she does so, she will surely find, as I did when I executed the search, a link to Toys "R" US' home page, but right next to that she will also find a link to a page called Sensual Sex Toys.  What would keep this young and innocent girl from clicking on the Sensual Sex Toys link?  She most likely does not know the difference between the two sites.  Many comment that her parents should be monitoring her browsing, but we know that parents don't monitor every single one of their children's actions.

So, herein lies the dilemma.  How much of the monitoring responsibility belongs to the family and how much lies with society?  Should the government alone regulate the access to such sites?  Reed believes that the monitoring should lie substantially in the hands of the parents and that the government should have little or no regulatory obligations. 

America Online's Paul McGraw offers the statistic that 'two-point-five million [people] use America Online [which is] like a city.   [Since] parent's wouldn't let their kids go wandering in a city of 2.5 million people without them, or without knowing what they were going to do' they shouldn't allow them to wonder in a virtual city alone either (Baase 208).  Reed agrees that it is not the government who should be doing the controlling, but he offers a different reason.  Reed ruled that the Congressional Proposal called the Child Online Protection Act ("COPA"), was "invalid on its face for violating the first Amendment rights for [both] minors and burdening of speech [that is, the violation of the 1st Amendment rights]" and that it was "unconstitutionally vague under the 1st and 5th Amendments" (Reed Text 2).  Reed believes that any governmental intervention or censorship may be a constitutional violation and that there is need for further assessment before any laws are passed. 

It is important that Reed did not let a hasty decision pass that would allow censorship, without assessing its violation of the 1st Amendment.  The consequences of this law are serious and there is no proof that there is not a 1st Amendment violation.  While it is illegal to distribute child pornography and lure children into sexual acts, the "discussion of sexual activity, even ... illegal sexual activity, is usually not illegal; it is protected by the First Amendment" (Baase 204, 207).    Reed acknowledges that child porn has its problematic uses, but that the publication of a sexual nature must be reviewed carefully (to assess 1st Amendment violations) before it is universally censored.  Thus, it was appropriate for Reed to rule that the proposal "would proceed only on the motion for preliminary injunction"(CDT pub. 1).  This means that the case can be appealed and moved on through the court system, but will not immediately go into effect. 

There are however, already some forms of child online protections.  Even if a child unknowingly enters a pornographic site he or she will (usually) be presented with a legal disclaimer.  This is often found in the form of a question e.g. are you over 18?  If yes click here, if no click there.  By choosing "yes", the child will go directly into the site, by choosing "no" he or she will either be sent to the last page he or she was at or, as one site with a sense of humor set up, he or she will be sent to www.disney.com.  While this disclaimer system is a form of defense, it in no way replaces the need for parent supervision.

Other defense systems come in the form of software packages.  Parents can buy software that limits the access to pornographic sites by either denying entry into specific sites or looking for key words within the cites that may be harmful to children.  Some of the most popular software companies include: Intergo 2.1, Cyber Patrol 3.0, Net Nanny 2.1, Net Shepard 1.0, Specs for Kids, Cybersitter 2.1, and Surfwatch 1.0V.10 (Internet World 3-10).  The most popular and effective of all the programs is Cyber Patrol 3.0 (Internet World 3-10). Cyber Patrol "provides the most secure form of blocking while allowing parents to be more liberal with their older kids" (Internet World 5).  Its motto ('to surf and protect') illustrates the playful side of this system that also runs the theme song to Hawaii 5-0 when it loads up.  Cyber Patrol is "flexible enough to allow different levels of access to different family members, and it provides privacy controls essential to creating an all-around safe environment"(Internet World 5).    While this version is a little difficult to program and parents need to "take care when configuring its many options", Cyber Patrol is still an effective (and relatively inexpensive2) way of protecting children online without violating the First Amendment rights of the site producers (Internet World 5).   Interestingly, a new form of automated monitoring was announced recently whereby an algorithm can determine with reasonable accuracy if a photo contains nudity. 

While it is becoming increasingly easy to monitor child web access, nothing will ever replace a parent's watchful eye.  Parents should discuss the rights and wrongs of Internet searching with their children, just as parents instruct their kids to look both ways before they cross the road.  Even if the government passes censorship rulings, the responsibility must ultimately fall in the hands of the parents.  Parents who do allow their children unsupervised access to the Web should be responsible for installing appropriate defense software. 

Reed's decision not to pass the Children's Online Protection Act, has upheld that the right of individuals to express their ideas freely is one of the important ideals that form the basis of our country.  It would be unlawful to restrict that right, no matter how disturbing the information presented seems in the eyes of concerned parents.  Although it was a difficult decision for Judge Reed to make, it was the right one.  Parents are responsible for their kids, and the government is responsible for upholding our rights as citizens. 

1 The first such proposal was the Communications Decency Act of 1996 ("CDA") which proposed to regulate the access of minors to "indecent" and "patently offensive" speech on the Internet.  It was found to be a direct violation of the 1st Amendment.  (speech2)

2 Microsystems Software offers Cyber Patrol 4.0 for $29.95, which includes a three-month subscription to the CyberNOT list and the new HotNOTs (updated lists of "bad" sites).

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