The Supreme Court May Protect Kids on the Internet
One of the most interesting early developments regarding the Internet was that all legal efforts to protect children from sexual material were struck down. In 1997, the Court struck down the poorly drafted Communication Decency Act. And in 2004, the Court struck down the Child Online Protection Act.
One of the Court's major arguments in these cases was that the prohibitions would inevitably prevent adults from their right to access these materials. The 2004 law, however, was modeled closely after the three-part Miller obscenity test; yet even that was not good enough. And in the 2004 case, there were supposedly less restrictive alternatives.
Further, in the 2004 case, both Justice Kennedy and Justice Breyer used strict scrutiny but came out on opposite sides. Kennedy said that filtering devices were a better blocking mechanism, even though he did not mandate their purchase. Breyer wrote a dissent that decimated the filtering argument, and argued that criminalizing the sending of such materials would be more effective.
Well, 20 years later, it appears Justice Breyer's day has come. Specifically, a Texas law, H.B. 1181, has criminalized the sending of online "sexual material harmful to minors." The porn industry echoed Kennedy in 2004 on filters, but based on the oral argument yesterday in Free Speech Coalition v. Paxton, there seems to be a Court majority that thinks filtering devices can't work. Justice Barrett also made an amusing comment about how kids can circumvent filters. The Texas law applies to entities that display content at least one-third of which consists of such material, and the law can have significant financial penalties. The Court showed concern over how such a law might stop adults from accessing material, but that did not seem to be a serious worry, unlike in 2004. And other Southern states have similar laws.
So I can't help but think that the increasingly negative public attitude towards the Internet will shape the decision. For a great many Americans, protecting children from what they regard as harmful influences matters more than ensuring easy adult access to porn. And of course the Court is more conservative now than it was in 2004. But even this case is small potatoes, since this material is apparently not being prohibited on social media. It will be interesting if that comes next. What is evident from all of these cases is that some of the Justices still don't fully understand how the Internet works, which is troubling.