A shameful surrender to pornographers

Another federal judge has struck down the Child Online Protection Act. Had it taken effect, the 1998 law would have done one simple thing: require Internet pornographers to verify the age of customers through the use of adult-access codes or credit cards.

Last month, Judge Lowell Reed Jr ruled out even this basic measure of accountability as a violation of the free-speech rights of porn purveyors and their often addicted customers.

Adding insult to injury, he said he was doing it for the kids: "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." So, by protecting the right of smut peddlers to exploit my daughter, Mr. Reed is actually protecting her right to exploit other children when she's an adult. The logic, and the arrogance, is breathtaking.

The Internet has revolutionized the way Americans conduct their daily lives. All kinds of pornography – from puerile convenience-store fare to pornographic images of violence and depravity surpassing the worst excesses of normal human imagination – are now just a click away.

Indeed, children are accessing pornography at a previously unmatched rate and with unparalleled ease. A recent study published in the journal Pediatrics showed that 42 percent of children ages 10 to 17 had been exposed to online pornography in the past year; 66 percent of the exposure was "unwanted."

Aware of its authority to regulate interstate commerce and of its compelling interest in protecting children, Congress has tried for more than 10 years to place restrictions on the distribution of online pornography, but each attempt has been struck down in the courts.

Reed's ruling, which excuses online pornographers even from having to check identification, is based on his view that today's software filters would be more effective at protecting children. There is a fundamental flaw in this reasoning that time and again has killed congressional efforts to address a profound social problem.

First Amendment law requires that, when government seeks to promote a compelling interest, the means used must restrict the least speech possible. In this case, the government's interest is protecting children from Internet pornography, the "speech" is pornography, and the restriction is the ID check.

Reed objected to requiring pornographers to restrict their "speech" in this temporary way because of the existence of software filters. But inherent in a least-restrictive-means analysis is the expectation that the "means" are actions taken by the government, not by private actors. The "means" are legislative in nature, and therefore mandatory, which is why they must not be overly broad.

Nothing in US constitutional law or history suggests that the people are powerless to pass laws that further child safety. A 1968 US Supreme Court decision ruled that states may consider that "parents and others ... who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility."

Many such laws come to mind. Parents teach their children to say no to drugs but the law also forbids drug sales to children. Parents warn children of the dangers of guns but the law also throws gun dealers in jail if they sell to children. Parents tell kids to stay away from porn but the law also requires video and convenience store clerks to check IDs.

Reed's decision says there may be no law governing the conduct of online pornographers vis-à-vis children, that government may do nothing to address a compelling public problem except hope that the market will provide effective products for consumers and that these products will be purchased and utilized.

Not only is this not how our laws work, but it also overlooks the reality that the most sophisticated screening software can only be effective where it is installed. Increasingly, children have access to computers over which their parents have no control: at schools, neighbors' homes‚ their own homes, and in libraries. And there's certainly no guarantee that computers in any of these places will have filtering software, or, if they do, that it is rigorous and effective. Parental self-help measures are vitally important in protecting children online. But they do not eliminate the need for legal accountability for Internet pornographers nor do they supplant the constitutional authority of Congress to take action to further this compelling interest.

The Child Online Protection Act requires no more of the porn industry than what our laws have always required – that they make reasonable efforts to ensure that children are not among their customers. Reed's ruling surrenders the Internet to a ruthless and exploitative industry and nullifies an essential prerogative of civil society – the protection of children.

• Cathy Ruse is a senior fellow of legal studies at the Family Research Council in Washington.