Paper accepted for the AEJMC Midwinter Conference, Feb. 6, 1999 - Nashville, TN
"Crafting Media: Credibility and Accountability."
By Genelle Belmas, former Silha Fellow
One of the most legislatively active and controversial areas in media law today is Internet pornography. Parents are concerned about what their children are seeing online and might be feeling helpless to control the sexual imagery that is fairly easy to find with just a few clicks of the mouse. Repeated calls for a control mechanism have resulted in proposals by Congress and software developers.
After the Supreme Court of the United States declared the Communications Decency Act unconstitutionally overbroad last year in Reno v. ACLU (American Civil Liberties Union), Congress tried again with the Childrens Online Protection Act of 1998. The ACLU immediately sought to enjoin the act's enforcement, arguing that the effect of the law was to chill speech that was probably protected by the First Amendment, and received a 10-day injunction (which ended December 4, 1998). The judge said that the plaintiffs had demonstrated that they would succeed on the merits in court.
While Congress has been struggling with legislative solutions, software developers have not been idle. A number of companies have come out with filtering packages by which parents can ostensibly control what sites their children are able to see when they surf the Web. While a good idea in principle (recommended, in fact, by the Court in Reno), parents may not realize that they might be buying a political ideology when they buy a filtering package. Some packages have been alleged to block not only sexual content but also content that the company finds politically or socially objectionable (such as information about gay and lesbian lifestyles or about abortion options for pregnant teens).
My paper looks at the online pornography issue and the attempted solutions to kids gaining access to sexual materials online. I propose an alternative that bypasses both constitutional overbreadth and ideological problems. This alternative is an application of established property zoning principles to online sexual content. The Court has already approved such zoning in the "real world," so an application of similar principles to the online environment should pass constitutional muster.
Former Silha Fellow