A federal district judge has recently ruled that the Children's Online Protection Act is an unconstitutional suppression of free speech. The law requires porn site operators to verify that patrons are 18 years old before giving them access to pornography. The lawsuit, brought by the ACLU on behalf of several sexual health sites and salon.com, states that this is a burdensome requirement and has a chilling effect on free speech. This position is absurd.
The law has been in effect now for 9 years. There is a clear track record to how the law is applied and to what content it applies to. If the law was signed 9 days ago, one could make a claim about a potential problem. However, after 9 years there have been apparently no cases in which a legitimate sexual health site has been prosecuted or that other speech has been curtailed.
More importantly, this law requires no change to the content of these websites. People remain as free before and after this law to peddle pornography. The law is only a regulatory requirement on how the content is accessed not on what content can be produced. It is a rather silly argument that sexual health sites would be blocked when they contain similar content as most comprehensive sexual education classes in public schools taught to 7th graders.
There is no apparent evidence that any sexual health site has been shut down because of this law. Even more apparent is that salon.com (a news and commentary site) has never been targeted by this law. It says something that salon.com is concerned about an on-line porn law, and I'm not sure it's the message they want to convey. Apparently politically pornography is not limited to Rush Limbaugh anymore.
The ACLU, apparently, agrees that there is a legitimate interest in keeping minors from pornography. They simply argue it would be a better policy to have parents install internet filters on their computer. This would help if parents controlled every computer a child might access.
Considering that a majority of home computers on the internet don't even have anti-virus installed, however, means that likely parents, as a rule, aren't technically proficient to install and maintain these filters, much less keep their technically-savvy children from bypassing those filters. They do make a good point that parents should be responsible for what children see online, but that point should be made to the Legislature not the Judiciary.
The argument that the law is burdensome on websites is simply false. After a one-time installation of the software and arranging a credit-card verification system (that would likely have to be in place anyway considering most porn sites are in the business of making money), there is next to no maintenance on such software. The burden is on the consumer to enter their information. That burden is about 30 seconds. It is hard to see what the entire weight of the US Constitution needs to be brought to bear to save internet chat room perverts 30 seconds in getting to their porno.
The most dangerous thing about this lawsuit and those like it, is that it is an obvious usurpation of the Legislature. By taking this case to court there are only two parties who get to influence the outcome, one solitary lobbying group (the ACLU) and a government lawyer who is accountable to no voter. The ACLU could have lobbied Congress to change the law, they have not. Since the argument isn't over the right of children to access porn, but for regulation on how a website distributes content, it is obviously a political question that has no place in the courts. No one seems to be arguing that children have an absolute right to pornography; it is simply the means by which their viewing can be restricted.
The constant running to a court to change democratically passed laws indicates contempt for the voters of this nation. Yet again, the ACLU has created another issue in which the voters cannot be trusted. The issue of how children should be restricted from access to pornography could easily be solved in the legislature, apparently voters and legislators can't be trusted to act appropriately. So much for freedom.
After 9 years of this law being in place, there is no reason to strike it down for "chilling" free speech that is in no way regulated by this law. There is no legitimate fear that sexual health information will be restricted. There is certainly no fear that political pornographers will be taken offline. This is a brazen attempt by the ACLU to end-run the legislative process and the will of the voters to impose values on America that Americans obviously don't want.
John Bambenek is the Assistant Politics Editor for BC Magazine and is an academic professional for the University of Illinois. He is a syndicated columnist who blogs at Part-Time Pundit and the executive director of The Tumaini Foundation which helps AIDS orphans and other children in Tanzania to get an education. He is the current owner of BlogSoldiers, a blog-only traffic exchange.