On the day before its summer vacation, the US Supreme Court freed Internet porn. The First Amendment, the Court held, prevents the government from regulating online speech if it can’t prove that “less restrictive alternatives” – like software filters – would be less effective than regulation. That’s an impossibly difficult standard to meet, meaning Internet porn (though not obscenity) now lives in a regulation-free zone.


This outcome was predicted when Congress passed the Child Online Protection Act in 1998. COPA banned sending material deemed “harmful to minors” across the Internet to anyone under the age of 18. It was a kludge of regulation, widely criticized from the start. Yet in light of other decisions affecting freedom on the Internet over the past six years, there’s something astonishing about the finding nonetheless.



For why does the First Amendment speak so forcefully to protect pornographers yet barely whisper when librarians or film restorers complain that copyright regulates their speech, too? Both porn regulation and copyright law seek to promote important governmental ends (protecting kids; protecting artists and commerce). Both do so by restricting speech (speak no porn without verifying the age of the recipient; copy no creative work without securing a license from the copyright holder). Yet while the First Amendment demands that porn regulation reach no further than is absolutely necessary, it is oblivious to unnecessary burdens of copyright. Thus, regulation designed to protect kids has to jump mile-high hurdles, while regulation designed to protect Disney survives with the most idiotic justifications imaginable.



My point is not that COPA is constitutional. It isn’t. But we need something smarter than this schizophrenic approach to regulate speech on the Internet. For the Internet changes things. And sometimes it needs a little regulation to protect liberty better.



Porn is the perfect example. If Congress does nothing about porn on the Internet, then the market will supply technologies to regulate it: filters. But porn filters are idiotic. They block all sorts of speech that should not be blocked and skip all sorts of speech that should. Worse, their errors are not subject to review: If a product like Net Nanny blocks a gay rights site, there’s nothing the ACLU can do about it. Net Nanny’s censorship is free of the First Amendment.



Demand for filters would fall, however, if the government enacted effective rules that enabled parents to block porn from kids. Why buy Net Nanny software for $40 when you can get the same protection through regulation for free?



More here.

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