While the Supreme Court decides the fate of the Communications Decency Act, experts say the next round of congressional bills on Net speech are likely to try a tack taken in 48 state laws restricting the sale of smut to children: Replace the CDA's ban on indecent speech with a narrower and perhaps more constitutionally defensible focus on barring material "harmful to minors."
"My fear is that the harmful-to-minors standard may be an easy fall-back position for some members of Congress who want to institute some standards of protection for children online," said Representative Rick Boucher (D-Virginia). Boucher co-founded the year-old Congressional Internet Caucus along with Representative Rick White (R-Washington), who attempted to insert a prohibition on speech harmful to minors in place of the broader ban on indecency that ultimately became part of the CDA.
The Supreme Court is expected to rule by early this summer on the CDA's constitutionality, which the American Civil Liberties Union, the American Library Association, and a host of other plaintiffs have challenged as overly broad. Many observers, gauging last month's hearing on the law, expect the court to strike it down.
Boucher's concerns may not be unfounded, said Connie Correll, a spokeswoman for White's office. "Certainly Congressman White might be willing to consider reintroducing the idea that content harmful to minors should be restricted."
But whether a harmful-to-minors standard would pass constitutional muster remains unclear. Daniel Weitzner, deputy director of the Center for Democracy and Technology, said a ban on content harmful to minors could in fact narrow the scope of the CDA's original ban on indecency while still preserving its original intent of protecting children from online pornography.
"There's no question that the harmful-to-minors standard is considerably narrower than the indecency one," Weitzner said. "Harmful-to-minors statutes are based on a standard of obscenity as it applies to children, which ratchets down the test of legal speech considerably. Still," he continued, "if that language were simply inserted into the current CDA, all the arguments against constitutionality would still apply. Whether or not you apply an indecency standard or a harmful-to-minors standard, you still have no way of judging anyone's age on the Internet. You could be speaking to anyone."
Moreover, Weitzner noted, prohibitions on the distribution of content harmful to minors have so far been found constitutional only with regard to the commercial distribution of smut. "It's not illegal to say things the courts might find harmful to minors on the street," he said. "Chat rooms are similar."
