July 16, 1996 in City

We Must Shield Kids From All Kinds Of Porn

Jim Exon Washington Post
 

This fall, the U.S. Supreme Court will begin considering the government’s appeal of a federal court ruling in Philadelphia blocking enforcement of the Exon-Coats Communications Decency Act.

That law stands for the simple premise that it is wrong to provide pornography to children on computers just as it is wrong to do so on a street corner or anywhere else.

It is important to understand what the Communications Decency Act is and what it is not. The law makes it a crime to knowingly use a telecommunications device or interactive computer to send an indecent communication to a child or to use a computer to display indecent material in a manner accessible to a child. The new law does not ban any constitutionally protected material from adults.

But the three-judge panel in Philadelphia found that there are no effective measures to determine the age of computer users.

However, this technological argument is faulty because the Internet, as a relatively new medium, and other interactive computer services are infinitely changeable and their architecture does and can accommodate child-screening. The court overlooked that a number of Internet sites already block child access by requiring credit-card or adult personal identification numbers, like those used for automatic teller banking machines, to gain access to those sites. And even if such technology were not available, the statute does not require those who traffic in electronic pornography to do the impossible - only what is “reasonable, effective and appropriate.”

The second line of the court’s criticism was in regard to the law’s “indecency” standard. The court found the term “indecency” and its rendition in the statute to be too vague. Thus, the court brushed aside years of U.S. Supreme Court rulings that not only have found the indecency standard to be sufficiently clear but that also have applied that very standard to radio, television and telephone use.

Here, the lower court’s disagreement does not seem to be with Congress but with the U.S. Supreme Court, which repeatedly has upheld the indecency standard - most recently in its decision last month on indecency on cable television.

The definition of “indecency” contained in the new law applies to material that, “in context, depicts or describes, in terms patently offensive by contemporary community standards, sexual or excretory activities or organs.” In other words, what goes behind the counter in the convenience store should be restricted to adults on the Internet as well.

The Philadelphia court also overlooked the fact that no court has applied the indecency standard to prohibit serious works of art, literature or medical information. In this regard, the court feasted on a plate of red herring.

Congress took great care in crafting the law so that it zeroed in on protecting children from indecency, as the U.S. Supreme Court repeatedly has acknowledged is a compelling state interest.

Congress modeled the statute on the existing “dial-a-porn” law which allows telephone sex services to ply their wares to adults but prohibits access by minors. The U.S. Supreme Court has found that the dial-a-porn law does not violate the First Amendment; adult material that is otherwise legal still is available to adults.

The Communications Decency Act is clear and cannot be violated by accident: There must be a knowing violation, and the material must be patently (that is, obviously) offensive by contemporary community standards.

It is true that since this law was proposed, various software programs have been developed to block some pornographic material, and I am pleased that the computer industry finally has agreed there is a problem. But it also is true that this software can’t block everything.

And shouldn’t the person who knowingly provides pornography to a child be held responsible under the law? I say the answer is yes.

But the Philadelphia court ignored the fact that it is fundamentally wrong to knowingly provide pornography to children and to display pornography in a public place.

If there is anything positive that came from the ruling in Philadelphia, it is that it is so radical and so sweeping in ignoring existing laws and previous court rulings that it will crumble under Supreme Court scrutiny.

I am hopeful that the high court, relying on its own precedents, will find the Communications Decency Act to be constitutional. As one editorial writer recently put it, it is a weak society indeed that cannot find some constitutional way to protect its children.

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