Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

March 22, 2007

Judge To Feds: You Can’t Treat Us All Like Children

by Doug Mataconis

Today, a Federal Judge in Philadelphia struck down a 1998 law that made it illegal for online content providers to allow children access to “harmful” material:

PHILADELPHIA — A federal judge on Thursday dealt another blow to government efforts to control Internet pornography, striking down a 1998 U.S. law that makes it a crime for commercial Web site operators to let children access “harmful” material.

In the ruling, the judge said parents can protect their children through software filters and other less restrictive means that do not limit the rights of others to free speech.

“Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection,” wrote Senior U.S. District Judge Lowell Reed Jr., who presided over a four-week trial last fall.

The law would have criminalized Web sites that allow children to access material deemed “harmful to minors” by “contemporary community standards.” The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.

The judge accepted the arguments of the opponents of the law that software filters and parental supervision are sufficient means to protect children from seeing inappropriate content online, and have the added benefit of not infringing on the right of adults to view such material if they wish.

The response of one of the government’s attorneys to this argument is particularly galling:

“It is not reasonable for the government to expect all parents to shoulder the burden to cut off every possible source of adult content for their children, rather than the government’s addressing the problem at its source,” a government attorney, Peter D. Keisler, argued in a post-trial brief.

In other words, the government knows better than parents what is appropriate for children.

This is only the latest in a long line of defeats for the Federal Government on this issue. In 1997, the Supreme Court struck down a 1996 law that would have banned online pornography. And, in the years since, the Supreme Court twice granted injunctions forbidding enforcement of the law because it found that the opponents of the law were likely to prevail. And prevail they have.

One would like to think that this will be the end of it, but the government is likely to appeal this ruling. Which is fine, because it will be good to have a good anti-censorship case coming out of the Court of Appeals and Supreme Court.

Full text of the opinion is here.

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