Children & first amendment

[Steve Hoffman]

Children's First Amendment Rights Lost in the Filtering Debate

Carl S. Kaplan
NY Times 3/6/98


Senator John McCain's bill seeking to require that schools and
libraries filter Internet smut as a condition for obtaining new
Federal telecommunications subsidies dramatizes the stepped-up
government efforts to separate children from indecent material in
cyberspace.

The extensive library filtering policy of Loudoun County, Va., now
being challenged in a cutting-edge lawsuit by some local library
patrons and the American Civil Liberties Union, is another example of
the trend.

But lurking behind these controversies and public debates is a simple
question with no clear answer: Do children have a First Amendment
right to obtain indecent materials?

The question is an important one, legal experts say, because the
stronger the rights of children to the broad category of indecent
materials, the harder it is to justify government filtering schemes
in places where children gather, like schools and children's
terminals in libraries.

It's crystal clear that adults have a constitutional right to books,
magazines and Web sites that are indecent - material that is sexually
explicit but not so extreme that it falls under the legal definition
of obscenity. The Supreme Court said so in the landmark Internet case
of Reno v. ACLU. There the court struck down certain provisions of the
Communications Decency Act because, in part, the law aimed at
protecting children from cyberporn spilled over to violate the rights
of adults to indecent materials.

In the Reno case, the ACLU argued that the CDA also stepped on the
rights of children to obtain indecent materials. The court,
pointedly, said it neither accepted nor rejected this argument,
although the one Justice to grapple with the issue, Justice Sandra
Day O'Connor in her concurring opinion, wrote that she believed an
indecency ban did not substantially interfere with children's rights.

At least one leading constitutional scholar believes children have
diminished rights to indecent material. 

"It's a nice question [whether children have a right to indecent
material], and the general answer would appear to be "no,'" William W.
Van Alstyne, a professor at Duke University School of Law and the
author of a leading textbook on the First Amendment, said in a recent
wide-ranging telephone interview. He defined indecent speech as
"sexually graphic or explicit" material that is "offensive to ordinary
sensibilities." Unlike obscenity, such material may have redeeming
social value. 

"Children don't have the same First Amendment rights as adults,
though they do have some First Amendment rights," Van Alstyne
explained. Children's speech rights "are diminished in direct
proportion to youth -- the younger the child, the greater degree of
permissible regulation of what they may have access to," he said. 

The rule of thumb stems from the same common sense reasoning that
would hold that children should have limited access to cars or
matches, depending on their maturity, said Van Alstyne. "There isn't
any doubt that at some age it is preposterous that a child has a
right to go to a store and buy matches," he said. "At that point,
[the child] has neither the experience nor gray matter to act in his
own best interests." 

Van Alstyne added that he believed an exception to the rule would
apply to indecent material in a junior or senior high school setting,
where the material is germane to a course or a class. "Young people
have a claim to learning latitude," he said. "A book can flunk the
indecency test" but have serious pedagogic use. 

Offering, gratis, what he called a "compromise" filtering plan, Van
Alstyne said a legally permissible course for libraries intent upon
filtering the Internet would be to have two types of Internet
terminals: unfiltered ones for adults, filtered ones for children. In
addition, a child could use the adult terminal if she were
accompanied by a parent.

Such a plan accomplishes several goals, he said. Adult rights to
indecent materials are respected. Children are shielded from
pornography. And any possible harm to a child's rights of access to
protected or valuable information stemming from the "unavoidable
overbreadth" of filtering software, which is so crude as to snag
non-objectionable sites, would be cured by allowing her to tap into
an adult terminal with parental permission.

Such an arrangement would be "almost certain to win judicial
acceptance by the courts," he predicted.

By coincidence, the Van Alstyne plan is almost exactly the proposal
offered by some library patrons in Loudoun County and ultimately
rejected by the library board, which opted for a stricter measure:
filtering on all terminals.

Not everyone agrees with the view that children have limited rights
to indecent material. Chris Hansen, a senior lawyer with the ACLU who
specializes in Internet matters, thinks that children have strong
rights to obtain valuable material, such as AIDS information and art
of nudes - even if it might be sexually explicit and offensive to some
people.

He added that all filtering programs inadvertently block material
that is not indecent and constitutionally protected. "So if you force
kids onto machines that are filtered, the odds are high that you will
be depriving them of access to information that everybody would agree
they should see," he said.

Hansen declined to predict whether Van Alstyne's "compromise" plan
would pass constitutional muster. "I'm not going to make a prediction
because I don't know the answer and I'm not going to put myself in
the position of giving libraries or censors a blueprint," he said.

He said as a policy the plan is flawed, however. Suppose, for
example, a 16-year-old boy is struggling with his sexual identity.
"He may not want to say to his Mom, 'I want to look up gay sites,'"
Hansen said.

Copyright 1998 The New York Times Company
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