A Stitch in Haste

To review: The federal courts, up to and including the Supreme Court, have consistently struck down federal laws attempting to restrict or burden websites in order to "protect children." Even before the Internet, it was well-settled law that government may not restrict access by adults to sexual content merely because children might see or hear it -- see, e.g., Sable Communications v. FCC, 492 U.S. 115 (1989). I reviewed the most recent litigation results here.

Of course, Supreme Court precedents -- and the First Amendment -- mean nothing to activist politicians such as Max Baucus and Mark Pryor:

The senators' bill -- the Cyber Safety For Kids Act -- would require adult Web site operators to include a flag in their Web site which would make it easier for filtering software to block adult material. In addition, the legislation would require Web sites with adult material to have a clean homepage and to have visitors verify their age when they sign onto the Web site.

"Bottom line, we want to keep our kids safe when they're on the Internet," Baucus said. "Parents and teachers shouldn't worry about their kids when they're on the computer at home or in the classroom. This bill will help keep kids safe and give parents peace of mind."

If enacted, the Cyber Safety For Kids Act would be just as unconstitutional as its predecessors, the Communications Decency Act (struck down in Reno v. ACLU, a/k/a "Reno I," 521 U.S. 844 (1997)) and the Child Online Protection Act (remanded in Ashcroft v. ACLU, a/k/a "Reno II," 542 U.S. 656 (2004), and just recently struck down at the trial court level -- ACLU v. Gonzales, No. 98-5591 (E.D. Pa., Mar. 22, 2007)). The analysis is totally unchanged:

--The terms "harmful to minors," "adult material" and "indecent" are unconstitutionally vague. Who decides what is "harmful," "adult" or "indecent"? By what standards? "The Department of Commerce will make it up as it goes along..." is not an acceptable answer.

--Restrictions on speech must not only be narrowly tailored to a compelling government interest (i.e., pass strict scrutiny), but they must also be the "least restrictive alternative." Mandatory tags simply do not qualify, nor do the additional requirements of a "clean" (defined how?) homepage and certainly not the age verification requirement. The lattermost burden was precisely the requirement deemed unduly burdensome in COPA, the law that was just struck down.

--Since the law can only apply to U.S. websites (i.e., is totally useless), it arguably does not even satisfy rational basis review, let alone strict scrutiny.

How many different ways are judges going to have to say the same thing to these activist legislators: The government cannot restrict all adult access to the Internet in order to protect children. Protecting children from the Internet is, and ought to be, the exclusive purview of parents, teachers and librarians, not politicians.

One final, and scary, thought: The bill has been referred to the Senate Commerce Committee, which is populated by such Internet clunkheads as Alaska Senator Ted "Series of Tubes" Stevens. Talk about "indecent"...

More thoughts at Threat Level, techdirt.