Commissioner William L. Schrader|
Chairman and Chief Executive Officer,
I commend my colleagues on the Commission for striving wholeheartedly toward consensus. Our respective viewpoints are very different, but at every turn the Commission moved away from polarization and discord so that, as a body, we could bring forward a set of recommendations with the weight of unanimity behind them. This is no small achievement and I am proud to have been a part of it.
The problem the Commission was asked to address - how we can protect our children from exposure to the grotesque images that are the stock in trade of the "adult content industry" on the Internet - does not admit of a one-dimensional solution. The law that brought this Commission into being, the Child Online Protection Act ("COPA"), shares the characteristics of other "magic bullets" - most are superficially appealing but deeply flawed. I believe, like several other members of the Commission, that the restrictions on speech enacted into law by COPA are unconstitutional. Participating in the work of the Commission has only brought into sharper relief the fundamental obstacles to legislating our way out of the problem.
One of the hard truths that complicates legislative efforts is that material that is "harmful to minors" (as legally defined) is not limited to the puerile, pornographic output of the "adult content industry." There is a wealth of content on the Internet that is sexually explicit but valuable (and therefore lawful) for adults - from the standpoint of literary, scientific, artistic, and even political values. Measures that are entirely appropriate to suppress the availability to minors of content purveyed by the "adult content industry" often have decidedly adverse impacts on the ability of serious-minded authors, educators, artists, or journalists to reach their intended audience via the Internet. For this reason, I believe there is no single, one-size-fits-all, technological equivalent of a "brown paper wrapper" in this new medium.
As PSINet has joined in legal actions to overturn recent "harmful to minors" enactments by State legislatures, I have found it instructive that none of the other plaintiffs can be considered purveyors of porn. Instead, they include sex educators, authors and publishers of controversial literary or artistic works, and AIDS activists. I do not doubt that much of the material published on the Internet by these content providers may meet the legal definition of "harmful to minors," especially for younger minors, for whom the educational or artistic value may be beyond their comprehension. To suggest, however, that these authors should be forced by law to segregate their work behind a credit card or age verification barrier, or label it as part of a new ".XXX" domain, or require that it be "X-rated" in a manner similar to adult movies and videos, illustrates how troublesome it is to apply these measures to the exceptionally diverse range of lawful content that may be "harmful to minors."
Wisely, the Commission recommends that only the "adult content industry" - not all authors or publishers of "harmful to minors" content - adopt certain of these measures, and that they do so voluntarily, as part of a self-regulatory regime and not as a legal mandate enforced by the threat of criminal prosecution.
The other hard truth that vexes our efforts is a constitutional one - that the ultimate legal judgment of content as "obscene" or "harmful to minors" can only be made in the context of local community standards. For this reason, I had suggested that the Commission call for a public dialogue, including lawyers, advocacy groups, and academics, on the constitutional question whether it is possible to reconcile First Amendment obscenity jurisprudence with the technological fact that the "community" of speakers and listeners on the Internet is inherently global. The Third Circuit Court of Appeals in Philadelphia held that, in enacting COPA, Congress recognized this conundrum but tried (unsuccessfully) to sidestep it. My concern is that, while encouraging stepped-up efforts at prosecution of obscene content, the Commission has perhaps glossed over the difficulties prosecutors may face in obtaining convictions, and sustaining them against challenge, for obscenity in a medium that (unlike any other in history) enables anyone, anywhere, to be both a "publisher" and a "listener" in a community that knows no geographical bounds.
For these reasons, I applaud the Commission for embracing solutions that rely primarily on educating and empowering parents and caregivers to protect children, while setting aside proposals for content-based legislation that would not only fail to protect children but would threaten the robust First Amendment protection that federal courts at all levels have extended to the Internet.
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