As long as there is obscene content on the Internet (can you imagine it disappearing?), politicians will seek to protect us from it. As a father of two I can certainly sympathize with their efforts, but repeatedly this effort has run aground thanks to the First Amendment.
The latest attempt to censor the Internet has occurred in Utah, home of last year's ill-advised spyware bill. Governor Jon Huntsman (R), CNET reports, has signed into law stating that anyone who "provides an Internet access service to a consumer" must block adult-registry sites when asked (be careful, Utah Wi-Fi users, the broadband mooch next door may ask you to protect his delicate sensibilities, and if you don't prepare to face the consequences).
Huntsman's spokeswoman says the governor "doesn't have a concern about the constitutional challenge." That's strong talk, but he needs more than that to see his new law survive in the courts. We've been down this road many times -- I know, I covered the cases as a reporter. The U.S. Supreme court rejected the Communications Decency Act (the only part of the Telecom Act to mention the Internet) as an unconstitutinal violation of free speech. A similar action was taken against a congressional re-try, the Child Online Protection Act, which was remanded again last year to a lower court to die. Perhaps most applicable to Utah is the rejection last year of a similar law in Pennsylvania by a federal court after CDT challenged it (CDT also was part of the challenge against CDA and COPA).
The recurring thread in these cases was not that the Supreme Court was suddenly ready to endorse obscenity; it was that the government never successfully made a case that their approach was the least restrictive means of protecting the citizenry. (One exception -- the Supreme Court has ruled that the government can require schools and libraries taking e-rate funds to install Internet filters on those funded computers, with those filters needing to meet community standards, whatever those are.) As Internet video increasingly becomes a consumer service, it's important to remember that these types of laws could have far-reaching effects, and also to keep these court decisions in mind when lawmakers and regulators seek to extend indecency regulations beyond broadcast -- are they using the least restrictive means to achieve their ends? Those are the some of the questions Adam Thierer is posing at our new Center for Digital Media Freedom.
