Free Speech
“First Amendment values should lead to favoring a speech regulation system that is thin and accountable, and in which the government’s action or inaction leads only to the suppression of speech the government has a legitimate interest in suppressing.” - Pg. 255
Deeply rooted in our country’s history and tradition is the right to freedom of speech. We pride ourselves on this Constitutional freedom and embrace all forms of speech because of it. This freedom ensures the spread of ideas, culture, and truth and is necessary in a democratic environment. It follows then, that we would want to extend this freedom into cyberspace. However, cyberspace presents a very different environment for communication. People can post material anonymously and have it immediately available to millions of people worldwide. How then can we allow freedom of speech on the internet while still stopping speech that would traditionally be prohibited, such as threatening, libelous, or obscene material?
Take, for example, sexual material on the internet. Let’s define porn to be what the Supreme Court calls sexually explicit speech that is “harmful to minors.” This doesn’t count obscene material or child pornography, but is legally permitted erotic speech. In real life, adults are allowed to purchase porn at a store, but laws prohibit minors from purchasing porn. We would like things to be similar in cyberspace. Adults should be allowed to access porn, but since it can be harmful to minors they should be restricted from accessing it.
However, it is much more difficult to prevent minors from accessing porn on the internet than it is offline. In a retail store employees can simply check someone’s ID, but on the internet it is almost impossible to verify someone’s age due to the inherent anonymity of the internet. Congress has tried to regulate the ability for minors to access porn through several laws, one of which was the Communications Decency Act of 1996. This made it a felony to transmit adult material over the internet to a place where minors could access it. Users had to taken reasonable steps to ensure that minors did not access the indecent material. Unfortunately, this law was incredibly vague and did not specify how minors should be blocked from reaching the content.
Congress tried again in 1998 with the Child Online Protection Act which required that websites with adult content verify the age of all visitors in order to protect minors. Verifying someone’s age online can be very difficult to do, however, and it inconveniences adults that are allowed access to the material as well. There needs to be a better alternative to fix this situation.
Lessig proposes that a law be passed mandating adult material be marked with special HTML tags designating it as such. A Harmful to Minors tag ‹H2M› would enclose all content that minors should not have access to. Simple filters could then be implemented in browsers to filter out all adult material. Finally, parents would be able to set parental controls that would identify these ‹H2M› tags and not present the tagged material to the minor.
This approach combines several modalities in its solution to regulate porn on the internet. First, law is enacted that forces websites to tag all adult material as Harmful to Minors ‹H2M›. Second, web developers would change the architecture of their site to accommodate this law and tag all offensive material. Finally, software markets would create browsers and filters with parental controls that could be set to prevent minors from reaching adult material. This combination of modalities results in a very effective solution that at the same time does not inhibit adult users.
Admittedly, intelligent and determined minors would find ways around this system, but it would be much more efficient and practical than laws currently in place. No system will be 100% foolproof, just as minors in real life can’t be fully protected from porn. However, this proposal, with it’s regulation through law, code, and markets, would significantly improve the situation from where it stands now.