Suffer the Children
In our toxic media culture, are there no legal protections?
The most recent attempt to protect children from material in the media that the courts themselves have recognized as harmful—this one a requirement that libraries receiving federal money have Internet filtering software—was knocked out in May by a three-judge federal panel in Philadelphia. Two previous measures with similar intents, the Communications Decency Act of 1996 and the Children's Online Protection Act of 1998, have been struck down by other courts. And the U.S. Supreme Court has ruled that "virtual" child pornography is legit. In each case, the First Amendment, considered by many to be the most absolute of them all, "semi-sacred," trumped the well-established need to shield children from vile and violent material. As the late Justice Felix Frankfurter put it, in these inimitable words, we should not "burn the house to roast the pig." But is there no way to keep speech free and better protect our children? And what First Amendment rights do youngsters have in the first place?
To proceed, we must first agree that there is a problem. The American Civil Liberties Union argues that "no direct link between anti-social behavior and exposure to the content of any form of artistic expression has ever been scientifically established." Others claim that the social-science findings run both ways, as they often do. But several major reviews of the more than 1,000 studies available on the subject have concluded that there is no reasonable doubt that the exposure of children to violent and pornographic material, while not the only cause of anti-social behavior, significantly contributes to a range of ills, from aggressive tendencies to committing serious crimes.
Influenced by such data and by growing public concern, a long-standing, bipartisan campaign has sought to discourage the entertainment industry from making movies that glorify drug abuse (flagged by President Ronald Reagan), promoting music lyrics that celebrate violence and sex (Tipper Gore), and providing easy youthful access to much else that is harmful but is found in great abundance in the media and on the Internet (a bipartisan coalition led by Sens. Sam Brownback, R-Kan., and Joseph I. Lieberman, D-Conn.).
Indeed, the law whose filtering requirement was just knocked out of court in Philadelphia, the Children's Internet Protection Act, was sponsored by Sens. John McCain of Arizona, a Republican, and Ernest J. Hollings of South Carolina, a Democrat.
Initially, the focus was on dealing with these threats to children through voluntary (or at least semivoluntary) means, such as providing parents and educators with tools to allow them to do the job themselves, and on persuading the media to use restraint. But these turned out to be of limited value.
Thus, in 1996, the federal government required that all new TV sets be equipped with V-chips to allow parents to control the level of violence their children are exposed to on television in their home. As far as anyone can determine, however, most parents are unaware of the existence of the V-chip, even fewer know how to use it, and almost none actually activate it.
Television broadcasters, under considerable governmental inducement, introduced a ratings system in 1998. The music industry has put various advisory labels on CDs and tapes. Movies have long had ratings. Still, the total effect, as far as one can tell, is small. The ratings or labels are set by the industry (the Motion Picture Association appoints its own board to determine whether a given movie receives a PG-13 or R rating, for example, and record companies and artists decide whether or not an advisory label goes on a given album, and which kind). Often, the considerations are not merely the well-being of children, but what will help the marketing of the product. For example, marketers have determined that a teenage movie with a PG-13 rating will do 30 percent better than one with an R rating. Thus, movies that depict sex, violence, and young people engaging in a variety of other dangerous behaviors often receive PG-13 ratings in order to attract a wider teenage audience (and to reassure their parents).
And enforcement is limited. Though the National Association of Theater Owners has voluntarily agreed to enforce the movie ratings, movie theaters vary greatly as to whether or not they "card" their patrons. A survey of hundreds of theaters conducted by the Federal Trade Commission in 2000 revealed that just over half the theaters reviewed actually enforced the age restrictions at the box office. It is even more rare for carding to occur during the purchase of music CDs. Because music is sold at a variety of stores, and there is no industrywide policy, decisions on whether to allow children to buy CDs with advisory labels are completely at the discretion of the individual store.
In an FTC survey, minors age 16 and under were able to buy music with advisory labels at 85 percent of the stores examined. And, of course, in the rare cases when a child is prevented from purchasing a CD, he or she can still order it on the Internet, so long as the parent's credit card or checkbook is available. Moreover, none of these measures lays a glove on the hundreds of thousands of sites that provide hard- core pornography by a click on the Internet.
With such voluntary means clearly not doing the job, Congress entered the fray with a truly modest proposal. The government created two programs that provide funds or discounts to schools and public libraries that wish to purchase computers and connect to the Internet. Those seeking to gain these funds must file an application in which they spell out how they plan to meet various requirements. The Children's Internet Protection Act of 2000 merely added one more: that recipients install filters on computers with Internet access to screen out material harmful to children. No coercion is involved. As the government's pretrial brief defending CIPA put it, "Any library recipient that disagrees, as a matter of policy or principle, with the conditions imposed by CIPA simply may decline to accept the affected federal subsidies."
But here is the rap: The law, despite its declared purpose and name—the Children's Internet Protection Act—requires that these filters be placed on all computers at the school or library receiving the funds, and that they apply to all patrons. By limiting the access of Internet users of all ages, minors as well as adults, the bill (and others like it) flies squarely in the face of the First Amendment.
It opens itself up to the often-repeated charge that adults should not be reduced to reading (and viewing and listening to) only what is suitable for children. One may argue that the government should prevent adults from accessing vile and violent material the way it bans their access to child pornography. Indeed, some studies indicate that adults who are more exposed to pornography are also more at risk of committing sexual offenses, and that adults who watch violent television are more likely to exhibit aggressive behavior. But this would amount to a whole different agenda, for which there has been little public preparation, and which was not openly an intention of the legislation at hand.
Whether the measure reflects a hidden agenda (to shield adults while speaking of kids) or is merely a very sloppy piece of legislation matters little. The Children's Internet Protection Act, as it was set up, has had the perverse effect of making the courts focus on the question of whether what the filters exclude is protected speech, rather than on the question of what First Amendment rights children command. In fact, in most of the 195 pages of the Philadelphia court's ruling, children are mentioned only in passing.
Civil libertarians showed the court that the filters "overblock," by preventing access to "thousands" of sites that contain protected speech, such as reliable and serious information about health and sexuality. (Jeffrey Pollack, a former Republican congressional candidate who initially supported CIPA, changed sides when he found that his own Web site was blocked by some filtering software.) They disregard the fact that the filters are getting better and are reported now to be at least 99 percent accurate. They pay no mind to the fact that users are hardly short of sites to choose from, on every conceivable topic, even if they cannot access them all, and that libraries do not shelve all "protected" books either.
Still, blocking access even to some sites containing protected speech offends the First Amendment, and this is this reason that the U.S. District Court in Philadelphia threw out the law.
The ready way out of this quandary would seem obvious to any reasonable person: If libraries have more than one computer, guide children to those with filters, and let adults use the others. If the library has only one computer, have children's hours. Require that Internet providers verify the age of clients who seek access to harmful sites (which they sort of do for child pornography already) and encourage movie theaters to do what cigarette venders and liquor shops do: Card their clients. Take the pig out of the house before you "roast" it.
When such sensible, obvious approaches are suggested, they force civil libertarians to reveal their true colors. They are opposed to these measures on the grounds that minors are entitled to basically the same First Amendment rights as adults. As ACLU attorney Ann Beeson put it, schools and libraries should "allow all adult and minor patrons to decide for themselves whether to access the Internet with or without a filter." (This position fits neatly into a much larger agenda of extreme advocates of children's rights, who assume that the family is defunct and hence children should be treated as akin to adults, so they can fend on their own.)
The American Library Association demands in its basic charter, with reference to Internet access, that "the rights of minors shall in no way be abridged." The ACLU has written that "if adults are allowed access, but minors are forced to use blocking programs, constitutional problems remain. Minors, especially older minors, have a constitutional right to access many of the resources that have been shown to be blocked by user-based blocking programs."
These positions are difficult to entertain, as minors are clearly developmental creatures whose capabilities change a great deal as they mature. Children, according to practically all of a huge social-science literature—not to mention elementary common sense—are different from adults in that they have few of the attributes that justify respecting the choices of mature persons. Children have not yet formed their own preferences, have not acquired basic moral values, do not have the information needed for sound judgments, and are subject to ready manipulation by others.
As Stanford University law professor Michael Wald writes, in reference to the social-science findings on the subject, "Younger children, generally those under 10 and 12 years old, do lack the cognitive abilities and judgmental skills necessary to make decisions about major events which could severely affect their lives. ... [Y]ounger children are not able to think abstractly, have a limited future time sense, and are limited in their ability to generalize and predict from experience."
Gradually, as children develop, they become capable of making moral judgments and acting on their own, and are then ready to be autonomous. As scholars Colin McLeod and David Archard put it: "Children are seen as 'becoming' rather than 'being,'" and "the basic idea that children must be viewed as developing beings whose moral status gradually changes now enjoys near-universal acceptance." As I see it, parents and educators do not merely have a right to intercede, but are discharging their social responsibilities when they act to shape the cultural environments in which children develop. This includes choosing the material to which children are exposed.
Discussion of this issue so far has followed the way in which it is typically discussed in the court cases at hand: with relatively little attention to age differences among minors. But based on the developmental conception of children, it follows that protections of minors should be age- graded.
Ideally, there would be many different types of warning labels and screening software that could take into account age differences as well as other factors—for instance, differences in the values of those who issue the protections and those who apply them. Some might be issued by teachers' colleges, some by religious groups, and some by the media themselves, leaving parents and educators free to choose from among them. (Given that age is merely a reasonable approximation for maturity, some parents might choose protections that had been prepared for somewhat older or younger children.)
When it comes to government-introduced measures, which are needed at least for now, such complexity may not be possible. However, a minimum of two gradations should be provided to take into account the gradual maturing process: one for children (12 years or younger), and one for teenagers (13- to 18-year-olds). It is hard to justify treating high school students the same way as children in primary schools and kindergartens, and vice versa.
But if you think that such gradations would find takers among civil libertarians, that they would consent to protecting at least young children, think again. Explains Laura Murphy, the head of the ACLU's Washington office: What if a 12- year-old wants to find information about HIV or gay lifestyles and finds the sites that discuss them blocked?
Granted that there are some such children, here we face the hard core of the issue at hand: In an imperfect world, should we continue to leave many millions of children completely unprotected from material that social-science findings and the courts have repeatedly recognized as significantly harmful to them, in order to accommodate a handful of others?
And if one can readily allow teenagers more latitude than children, but still shield them some, and have minimal side effects on adults, should that not satisfy the courts and all but the most extreme First Amendment diehards?
Amitai Etzioni, a sociologist, holds the title of university professor at George Washington University in Washington. His books include, most recently, The Monochrome Society and The New Golden Rule.
Vol. 22, Issue 9, Pages 42, 56Published in Print: October 30, 2002, as Suffer the Children