Application of American Legal Theories and Proposal of the Intellectual Capitalism Theory

“The First Amendment to the United States Constitution provides that ‘Congress shall make no law ... abridging the freedom of speech.’ Although there is no complete consensus on the issue, most courts and commentators theorize that the importance of protecting freedom of speech is to foster the marketplace of ideas. If speech, even unconventional speech that some find lacking in substance or offensive, is allowed to compete unrestricted in the marketplace of ideas, truth will be discovered. Indeed, the First Amendment was designed to prevent the majority, through acts of Congress, from silencing those who would express unpopular or unconventional views.”

The Internet is an innovation matched by few other developments in human history. Created in 1969 by the Department of Defense primarily to facilitate rapid government communication, the Internet has speedily expanded its reach. The Internet, primarily through the World Wide Web, now attracts millions upon millions of users, facilitates billions of dollars of annual commercial transactions, and promotes content that is as diverse as human thought. Even still, the technology remains in its relative infancy. It is projected that one billion people will be Internet users by early in the next century.

The rapid growth in the use of this technology is also seen among America’s youth. In 1998, sixteen million children under age 18 (six million of which were under age 13) were reported to be using the Internet, numbers which are nearly twice as high as those reported only a year earlier. [2]

What troubles many proponents of Internet regulation is the amount of adult-oriented material on the web, and the potential harm that it could cause the youth of the country. In fact, in 1998 it was estimated that nearly 70% of web traffic consisted of adult-oriented material that was unsuitable for children. [3] As a parent of two young children (ages four and one), I can appreciate these concerns. However, it is my conviction that first amendment free speech of web authors outweighs the government’s interest in protecting children. Through this paper, I will further explain my rationale, and support it through the use of American legal theory.

In this paper, I will not define what constitutes pornography. Effectively defining pornography is obviously important to any discussion about regulating pornography, however it is also an immensely complicated issue that has been the subject of much debate and litigation. Rather than dedicate space to the glossing over of what could, in itself, warrant a lengthy paper, I simply state that there is some material which most would agree is pornographic and that any law which would regulate the dissemination of pornography would necessarily define what constitutes such materials (and could presumptively do so in a Constitutional manner).
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I find it necessary to begin this paper by giving a brief outline of the legislative history of the major Congressional Acts and associated court decisions related to protection of juvenile Internet users. I will then apply three schools of American legal theory: Feminist Legal Theory; the Critique of Rights (Critical Legal Studies); and Ronald Dworkin’s Moral Theory. I will conclude by outlining and supporting my own legal theory on the subject.

As the quotation from Judge Reed at the beginning of this paper reminds us, indecent material is protected by the First Amendment. It is, however, subject to a certain amount of regulation due to its slight social value.[4] Such regulation is subject to the strict scrutiny of the courts. It is a balancing act of compelling government interest in child protection versus the freedom of speech (including indecent speech) that is protected by the First Amendment. The government can only regulate indecent speech through narrowly written regulations that are designed to serve its compelling interests without unnecessarily burdening First Amendment freedoms.[5]

Ginsberg was an operator of a stationery store and luncheonette who was convicted of selling “girlie” magazines on two different occasions to a 16-year-old boy in violation of a New York statute. The U.S. Supreme Court upheld the constitutionality of the statute which prohibited the selling to minors under the age of 17, material that was considered "obscene to them even if not obscene as to adults." The Court described material as being obscene to minors when it: 1) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; 2) appeals to the prurient interest of minors; and 3) is utterly without redeeming social importance for minors. [6] The narrow focus of this statute distinguishes it from later decisions, as the statute was aimed at commercial sale of harmful magazines directly to minors, and did not bar any communication between adults.

On June 26, 1997, in Reno v. American Civil Liberties Union, the Supreme Court of the United States held that the Communications Decency Act of 1996 (CDA) was unconstitutionally vague and overbroad as per the First Amendment. In its ruling, the Court distinguished the case from Ginsberg. The Court points out that the statute upheld in Ginsberg was narrower than the CDA in four important areas: 1) the prohibition against sales to minors did not bar parents who so desire from purchasing the magazines for their children; 2) the New York statute applied only to commercial transactions; 3) the New York statute cabined its definition of material that is harmful to minors with the requirement that it be "utterly without redeeming social importance for minors"; and 4) the New York statute defined a minor as a person under the age of 17. [7] It is worth noting that violations of the unconstitutional CDA would have carried fines and/or prison terms of up to two years, and the provisions of the Act would have applied broadly to web-based content.

In her concurring opinion joined by the Chief Justice, Justice O'Connor suggested a potential solution to the constitutionality issues discussed. O'Connor opens her opinion by writing, "I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create 'adult zones' on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a 'zoning law' that passes constitutional muster." Justice O'Connor states that such adult zones have previously been sustained by the Court, "but only if they respect the First Amendment rights of adults and minors." She continues, "That is to say, a zoning law is valid if (i) it does not unduly restrict adult access to the material; and (ii) minors have no First Amendment right to read or view the banned material." [8]
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Just one year after the CDA was struck down as unconstitutional, Congress made another attempt to pass a Constitutional child protection law [titled the Child Online Protection Act (COPA)]. Even though it was based largely on the suggestions outlined in the O’Connor concurrence discussed above, COPA suffered from many of the Constitutional problems found in the CDA. The day after President Clinton signed the Act into law it was challenged, on a Constitutional basis, by the ACLU and 19 other plaintiffs who described themselves in their brief as representing, “a broad range of individuals and entities who are speakers, content providers and users of the Web.” In February of 1999, the United States District Court for the Eastern District of Pennsylvania, found in favor of the plaintiffs and granted a preliminary injunction on the enforcement of the child protection law.

The conclusion to Judge Reed’s opinion demonstrates the struggle to balance First Amendment free speech protections against the government’s interest in protecting children from harmful material. He concludes by stating,

The U.S. Court of Appeals for the Third Circuit heard oral argument on the challenge to COPA on November 4^th, 1999. At the time of the authoring of this paper, the court had not yet issued a decision. Regardless of what the appellate court decides, the debate over free speech versus child protection is not likely to end here.

As mentioned in the introduction to this paper, I will discuss the issue of balancing free speech with web-based child protection through the application of three schools of American legal theory: Feminist Legal Theory; the Critique of Rights (Critical Legal Studies); and Ronald Dworkin’s Moral Theory. I will begin each section by giving an overview of the movement or theory. Then I will examine how each group would be likely to address (or has addressed) the issue.

Feminist jurisprudence has been described as a "broad church," within which co-exists a wide array of positions.[10] Feminists generally start with the assumption that the law is unfair in its treatment of women and that change is desirable. The gist of the Feminist Legal Theory is that the perspectives from which laws have been, and continue to be, drafted from are particularly male perspectives, and that the exclusion of the female perspective has resulted in a legal system which maintains the subjection of women to men.[11]
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The concept that laws are drafted from a male perspective is founded on psychological theory that women’s social development is different from that of men. This theory is supported by the well-known study conducted by Carol Gilligan. Her study found that the two sexes reason differently and have very different views on interpersonal relationships. Gilligan found that the boys in her study tended to abstraction and to focus on justice, rights, and autonomy, while the girls tended to the particular and to focus on responsibility, connection, and empathy. Gilligan was not the first psychologist to notice that men and women reason differently.[12] However, her study was innovative because it put forth the notion that the female method of reasoning through focus on the particular was not inferior to the male method of reasoning through generality, but rather merely a placement of different values on different principles.

Within the Feminist Legal Theory movement, there are two distinct schools of thought on the topic of pornography. At the risk of oversimplifying, the first school views pornography as another way that the male perspective has maintained the subordination of women, while the second school holds that censorship of pornography will invariably include censorship of feminist ideas and ideals.

Andrea Dworkin and Catharine A. MacKinnon, drafters of the Model Antipornography Law, are two of the leading feminists opposed to pornography. Their innovative legal approach defines pornography as sex discrimination, thereby characterizing pornography as a violation of civil rights.

As part of their writing in support of the model law, Dworkin and MacKinnon argue that the law has been used to impose inequality of male authority over women. They contend that resistance to male authority requires far more than resistance to the state or its authority because, “The state is one agent of male authority. The rapist is another. The husband is another.” They go on to state that, “For women, the authority of man extends into intimacy and privacy, inside the body in sex and reproduction. In worshipping a male God, in conforming to social codes of dress and demeanor, even in using language, women defer to the authority of men.” Their argument is that the authority of law, which has sanctioned inequality, can be forced to sanction equality. [13]

According to Dworkin and MacKinnon, the law has been wrong in framing the issue of pornography as a question of private virtue and public morality. They argue that the law needs to consider whether pornography is detrimental to the fabric of society by framing the issue as one of personal injury and collective abuse. They argue strongly that specific definable groups have been injured by pornography.[14] Andrea Dworkin describes pornography as an $8-billion trade in sexual exploitation that, “[turns women into] subhumans, beaver, pussy, body parts, genitals exposed, buttocks, breasts, mouths opened and throats penetrated, covered in semen, pissed on, shitted on, hung from light fixtures, tortured, maimed, bleeding, disemboweled, killed.” [15] She characterizes pornographers as pimps who hate women. In her article, “Against the Male Flood: Censorship, Pornography, and Equality”, she writes:

On the other side of the argument, many within the feminist movement (including many of the best known names in modern feminism)[18] disapprove of web censorship in the name of child protection, because to do so could lead to severe limitations on they types of web-based discussion that the movement supports. In fact, in one case it has already happened. In 1994, an online provider closed a feminist discussion group because of the group’s provocative ideas.[19] Many hold the belief that censorship in the name of child protection is likely to restrict adult access to important feminist topics such as sexism, reproduction, and sexuality. As feminist Avedon Carol put it,

According to the non-profit organization Feminists for Free Expression (FEE) (a self-described “group of diverse feminists working to preserve the individual’s right and responsibility to read, listen, view and produce materials of her choice, without the intervention of the state ‘for her own good’”), freedom of expression is especially important for women’s rights. According to FEE, “while messages reflecting sexism pervade our culture in many forms, sexual and nonsexual, suppression of such material will neither reduce harm to women nor further women’s goals.” The group adds that, “Censorship has traditionally been used to silence women and stifle feminist social change. It has never reduced violence.” [21]
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FEE contends that genuine feminism encourages individuals to choose for themselves which words or images are dangerous or sexist. They further argue that a “free and vigorous marketplace of ideas” is the best guarantee of both democracy and a feminist future, because if one group is allowed to be censored because some other group finds it offensive, all groups may be censored, including women.

Not everyone in the feminist movement believes, as Andrea Dworkin does, that women are physically injured to produce pornography, pornographers are pimps who hate women, or even that pornography is degrading or harmful to women. Many opponents of Dworkin’s position believe that her description of pornography is exaggerated. Censorship opponent, Avedon Carol, wrote that in more than 20 years of reviewing pornography for her research, she has never found a photographic or motion picture image of a women bleeding in any porn shop in the United States. Carol claims that Gayle Rubin, a feminist anthropologist who does similar work, has also been unable to locate any such images. According to Carol no police authority anywhere in the world has ever been able to document the existence of a movie where the actress was killed in order to produce pornography. [22]

FEE contends that pornography does not degrade women. As they put it, “sexism, not sex, degrades women.” The group supports a position that the elimination of pornography will not eliminate sexism. FEE further reasons that women interpret pornography in different ways, “Some find it sexist, some find it a form of fantasy, like dreams and the movies we run in our head when we masturbate or have sex.” The group points out that half of the adult videos in the U.S. are bought or rented by women alone or in couples, sex health professional recommend pornography as entertainment and information for men and women, and that sexually transmitted diseases have made it a public necessity to encourage sexual fantasy materials that offer safe alternatives to unhealthy sexual contacts. [23]

As I mentioned in my introduction of Feminist Legal Theory, because of the diverse interests that it represents, feminist jurisprudence includes a wide array of positions. It contains strong support both for and against regulation of pornography on the web. Therefore, as a whole it supports neither side of the argument, but taken in part it can support either position.

Critical Legal Studies proponents have established a line of reasoning known as the “rights critique.” The idea is that the concept of rights was created by the ruling class and that the abstractivity of the concept of rights obscures the value of our real experiences and allows the powerful class of our capitalist society to oppress those who are not a part of that class. Alan Freeman, a proponent of Critical Legal Studies has written that rights are, “[not a] functional, responsive and autonomous expression of shared values or emerging egalitarian norm, but instead [are an] ideology.”[24] He states that, “rights may well lead to wrongs” and that “rights may be ultimately constraining for political movements.” Freeman is not alone in his assessment of rights. Essentially, the rights critique is not only the argument that the concept of rights is not good, but further that the use of rights actually impedes the advancement of society.

In his “Essay on Rights,” Mark Tushnet outlined the critiques on rights as follows:

Tushnet writes that, “It matters only whether [black men who tried to use a segregated public library and homeless men who pitched tents across from the White House] engaged in politically effective action. If their action was politically effective, we ought to establish the conditions for its effectiveness, not because those conditions are ‘rights’ but because politically effective action is important.” Thus, Tushnet (and the rights critique proponents) would view it as unimportant whether these men were exercising first amendment rights, but rather would focus on whether the men’s actions were effective.

Such a line of reasoning leads to an interesting analysis of the free speech versus child protection issue. According to the “rights critique,” we should not focus on whether producers of pornographic web sites have a right to publish this material, but rather, whether their method of expression is effective. Determining whether this expression is effective is not an easy question to answer. The conclusion depends upon what the purpose of the expression was, for the effectiveness is a function of how well the purpose was met. For instance, if a producer is a capitalist focusing primarily on making money, the evidence seems to support that fact that many such producers have been quite effective at turning substantial profits. If a producer, on the other hand, is creating the web site primarily for the purpose of artistic expression, the issue is more difficult to evaluate. What constitutes art that portrays an important message to one person, may be considered an obscene product with little social value to another person. Of course, a web producer may have as his or her motivations a mix of making money and artistic expression, or even entirely different motivations. It seems then, that each case must be analyzed separately under the “rights critique.” This is consistent with Tushnet’s contention that we ought to “value real experiences for their own sake,” rather than focus our discussion on individual rights.
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Through this approach, Tushnet would thus not even get to the court’s approach of weighing of web pornographer’s “rights” against the government’s interest in child protection because of his opinion that focusing on individual rights is ineffective. In fact, Tushnet has explicitly expressed his position towards the balancing process of defining rights. He contends that to balance interests at all, one must reduce them to some measure of common value guided by some substantive theory of rights. The problem then, as seen by Tushnet, is that the Supreme Court has not provided us with such a theory on free speech rights. Further, he contends that because of the number of interested and affected parties, it is particularly difficult to make the balance and to take the necessary account of all of the affected interests. Finally, he reasons that the courts can choose the necessary level of generality to support whichever side of the argument the particular court chooses to support. Thus, according to Tushnet’s reasoning, we cannot effectively balance the free speech rights of web producers against the government’s interest in child protection.

Further, critical legal thinkers would be likely to find personal and political motivations driving the actions on both sides of the issue. Indeed, in a 1993 article, Tushnet addressed the topic of free speech protection.[26] In the article he argued that the Supreme Court's decisions in support of First Amendment free speech claims are largely a result of the Court’s desire to satisfy the interests of “the respectable media.” Tushnet’s reasoning is that the Court needs support from its constituencies if it is to accomplish the purposes of the individual Justices. The respectable media, the argument goes, disseminates the Court's decisions to the wider public, and thus the Court can ensure a favorable public image by satisfying the media's interests. To support this line of reasoning, Tushnet poses the following hypothetical:

Through this reasoning, Tushnet concludes that First Amendment decisions favoring the respectable media should not be surprising because the Court's interests converge with the interests of the respectable media. To bring this logic into the specific area of online child protection legislation, I pose a similar hypothetical. Consider two possible leads for a story reporting a decision on this topic, finding an online child-protection regulation unconstitutional. The first is, “Continuing its recent trend to decline to support Child Protection legislation, the Supreme Court today found the recently passed legislation unconstitutional.” The second is, “The Supreme Court today upheld the First Amendment free speech rights of web content providers.” As in Tushnet’s hypothetical, the Justices who voted to overturn the legislation would probably prefer the second headline.

In summary, rights critique proponents choose not to focus on rights, but rather on whether actions taken were effective. According to this line of reasoning, when discussing whether web content should be regulated in the name of child protection, we must first determine whether the unregulated production of the material is effective. Such a conclusion depends upon what the purpose of the production was, a decision that judges would need to make on a case by case basis. Thus, in general terms, the critique of rights supplies no clear answer to this conflict, other than that each case should be evaluated according to its own merits, as based on the effectiveness of the associated actions and the interests of the judges making the decision.

At this point in my paper, I venture out onto a limb that will hopefully support my weight. I do so by addressing some of the theories of Ronald Dworkin. He has been the subject of volumes of writing by numerous legal thinkers that are vastly more experienced at evaluating legal theories than I am. Dworkin himself has written dozens of articles, which have been compiled and published as several books. The topics that he covers are diverse, his theories are often controversial, and his views are taken seriously by the legal community. For the purposes of this paper, I will restrict my discussion primarily to the moral theory that he brought forth in the late seventies, although some of his later writings were used to shed some light on the meanings of those that came earlier.
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In brief, Dworkin’s moral theory is that the basis of sound legal argument is the use of the best moral interpretation of existing social policies. These policies are based not only on decisions made by courts, but also on legislative action, police enforcement and so on. The law should then be interpreted so as to make the best moral sense of it. Often one party may have a right to win. Even if there is no settled law on the subject, Dworkin contends that the judge’s duty is to discover that right.[27] This evaluation is rooted in the humanistic precept that all people are equal as human beings, and should be treated as such, regardless of the circumstances in which they were born.[28]

When it comes to constitutional interpretation, Dworkin holds to his moral theory, but makes a distinction between specific and vague principles. His argument is that abstract constitutional provisions, such as the First Amendment, reflect broad moral principles that judges must uncover to answer constitutional questions. Dworkin writes:

Dworkin argues that some of these constraints on the majority are specific and some are vague. The vague principles, he argues, were deliberately chosen because “even reasonable men of good will differ” when trying to elaborate on and apply them. He contends that these vague clauses represent, “appeals to the concepts they employ, like legality, equality, and cruelty.” [30]

Although he admits that different judges might come out with different answers using his moral approach, Dworkin’s contention is that history, practice, and integrity will limit the range of possible outcomes.[31]

Applying the moral theory to the issue of the free speech of pornography web site producers versus child protection is not an easy task. Beginning with Dworkin’s humanist ideal that all people are equal, consider the diversity of the parties involved. Consider first, the parties that have an obvious stake in the argument such as parents of young children who are online, the parents of teenagers, teenagers, children’s rights groups, and lawmakers. Next, consider the parties that have a substantial enough stake in this issue to have filed an amicus brief in the CDA or COPA constitutional challenges. They include (but are not limited to): gynecological web site producers, producers of online magazines that discuss sex, free speech advocates, the ACLU, moral responsibility activists, religious groups, online booksellers, adult viewers of sexually explicit materials, feminists groups on both sides of the issue, the Salvation Army, print magazine producers, artists, university professors, advertisers, reporters, ABC, CBS, NBC, and law enforcement agencies.[32] If all people are indeed equal, how is one to determine the best moral policy, taking into account the interests of such a diverse collection of the involved parties? The parties involved have dozens of diverse positions regarding moral policy representing a wide range of argued for outcomes. If law should be interpreted so as to make the best moral sense of it, is there a clear answer as to what the best moral sense is in this case? Reasonable people of good could vary drastically on this issue, even if constrained by history, practice, and integrity.
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Ronald Dworkin’s position on equality (which becomes relevant in evaluation of his moral theory) does not seem to address the rights critique contention that the concept of rights was created by the ruling class. Nor does it seem to support the feminist position that laws are written from a distinctly male perspective. As Catherine Iorns stated in her article: A Feminist Looks at Ronald Dworkin’s Theory of Equality:

Dworkin’s moral theory gives no easy or obvious answer or position in the case of the free speech of web site owners versus the government’s interest in protecting children. However, it does an excellent job of very clearly bringing to light the diversity of issues involved further illustrating the challenges of balancing these competing interests.

As I have shown through my discussion of three legal theories, it is difficult to find one theory that provides a clear answer to the issue of the free speech of web site producers versus the government’s interest in protecting children. It is even more difficult to find a theory that single-handedly justifies my position that the first amendment free speech rights of web producers outweighs the government’s interest in the protecting children. However, through borrowing from these three theories, I believe that there is an answer that supports my position on the topic. Throughout the remainder of this paper, I will refer to my formulation of the parts of these theories as the Intellectual Capitalism Theory.

In a nutshell, the Intellectual Capitalism Theory, goes as follows: All people are equal as human beings, and should be treated as such, regardless of the circumstances in which they were born. However, the laws have been (and continue to be) drafted from the majority perspective (particularly from the white male ruling class perspectives). The best guarantee of a future that treats people equally is a free and vigorous marketplace of ideas. If one group is allowed to be censored simply because some other group finds it offensive, all groups (but more likely minority groups) may be censored. Therefore, we ought to protect free speech, not because it is a ‘right’ but because allowing freedom of speech is a politically effective way to protect minority speakers.

It is one thing to recognize the position that all people are equal and should be treated as such. It is quite another to do so while recognizing that our legal system was developed from the majority perspective (and further that it perpetualizes the favoring of the majority). I fully realize that to a certain extent statistics can be twisted to support most any position. Nevertheless, in support of the position that the legal system perpetualizes the favoring of the majority, consider the following crime and punishment statistics: average prison terms are twice as long for killing husbands as killing wives; 54% of women in prison are women of color; [34] about 84% of the victims in death penalty cases are white, even though only 50% of murder victims are white.[35] In Federal cases, 78% of the defendants selected for capital prosecution were black.[36] If statistics aren’t convincing evidence that laws are written from the perspective of (and to favor) the white male ruling class, the following questions should be addressed: how long was slavery protected by the law; how long did women not have the right to vote; for how many years were women not allowed to sign legal documents; and what percentage of current and past legislators are/were white and male?
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As a person who is male and not of color, I am troubled by the amount that the law favors those like me. It is my firm belief and contention that the best guarantee of a future that treats people equally is a free and vigorous marketplace of ideas. The voices of the minority can only be heard if they are allowed to speak. The first amendment is a vague provision that was intended to protect the speech of those who are not in the majority. How can we expect the law to treat people equally, if it does not protect their right to be heard?

If a minority point of view is unpopular or unfavorable then the majority has the opportunity to respond. If the majority voice is indeed the most popular position then, in a free and vigorous marketplace of ideas, the volume of majority speech should far exceed that of the minority. The majority should have no fear of not being hear, rather the real concern of the majority is that someday its views may no longer be the majority. People do not change their views overnight. It takes many different exposures and experiences for most of us to honestly consider a different point of view, and by the time we adopt a new position we have had multiple opportunities to consider a variety of points of view on the subject. As Feminists For Free Expression reminds us:

Restriction of speech gives rise to fear and discrimination against that which is foreign to us, or unknown. If a particular view is vastly unpopular, it will eventually be obscured by the majority position. The economies of speech give the minority a right to be heard without forcing a majority to accept the position. The minority may not get its way but at least has a voice in the discussion. Other times, through the voice of the minority, important changes and social improvements occur. We should protect free speech because it is a politically effective way to protect minority speakers. Censorship is a tool used to silence the minority (as the majority position would, by its nature of being the majority, have the political leverage to avoid censorship). Censorship eliminates the potential positive changes that come from the gradual adoption of some minority positions.

As these are abstract ideas, they are difficult to disagree with in abstract terms. Such statements are of little value unless they function effectively when applied to real experiences. Therefore, I will now apply my theory of Intellectual Capitalism to the issue of the free speech of producers of pornographic web sites versus the government’s interest in protecting children. The overarching idea is that we ought to protect free speech rights through a free and vigorous marketplace of ideas so as to provide the best guarantee of a future that treats people equally. Although this may seem like a difficult case in which to apply this reasoning, it is truly not. This is not an issue of protecting pornographers over protecting children, but rather a case protecting web producer’s free speech over the government’s interest in child protection. Based on this theory, the free speech of web pornography producers should be protected for two reasons. Not protecting the free speech of web producers would eat away at the free speech rights children will inherit when they reach adulthood, and the government’s interest in child protection is secondary to the parents’ interest in child protection, which includes the responsibility to teach their children how to choose which types of speech to listen to.

First, not protecting the free speech of web producers would eat away at the free speech rights children will inherit when they reach adulthood. Many children are members of minority groups and may develop unpopular positions that upon maturity will require free speech protections. The duty of the courts to protect the free speech of the minority outweighs its limited interest in protecting children from harmful content. Further, many older minors would be restricted from important information if they were “protected” by the government. Many would argue that a 17-year-old college freshman should be allowed to access much of the web-based information that would likely be unavailable to them if they were “protected” by the government, such as information on feminism, birth control, breast cancer, sexual orientation, and sex.
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Restricting free speech in the name of the protection of children would ultimately harm them. As Judge Reed concluded in ACLU v. Reno (COPA challenge) case:

Second, the government’s interest in child protection is secondary to the parents’ interest in child protection, which includes the responsibility to teach their children how to choose what types of speech to listen to. As Justice Stevens points out, pornographic material is seldom encountered by accident, but rather by the user’s conscious decision to access such content.

Justice Stevens goes on to point out that access to sexually explicit material over the Internet requires a series of affirmative steps and some sophistication in order for a child to retrieve material through the Internet unattended.[40] Such a child should have been taught much by the time he or she reaches this level of sophistication, such as what to do when a

stranger approaches, what to do if the child is ever abducted, and what to do if offered drugs. It is reasonable to expect parents of web-savvy children to discuss and teach their children what kinds of material are appropriate to access. Although the government has a limited interest in protecting children from indecent materials, it is ultimately a parent’s responsibility to do so. The Internet is a technology that is not going away, and children need to be taught, by their parents, how to deal with the available content.

Parents who wish to further discourage their children from accessing sexually explicit materials over the Internet have several tools at their disposal. Many major Internet Service Providers, and several independent companies now offer blocking software that parents may use to keep their children out of sites that may contain information that they think is inappropriate. Some of these software programs restrict access to web sites that contain specific words or content, some screen outgoing materials, and others create a log of which sites have been visited so that a parent can monitor a child’s usage. Many schools that have Internet access for students have software program that block not only sexually explicit content, but also information and content on games, sports, drugs, and gambling.[41] These tools are just that, tools. Ultimately a parent must guide and train his/her children on appropriate Internet usage.

CONCLUSION

All people are equal and should be treated as such, but the perspectives from which laws have been, and continue to be, drafted are from the majority perspective. A free and vigorous marketplace of ideas is the best guarantee of a future that treats people equally. Therefore, we ought to protect free speech rights, not because they are ‘rights’ but because allowing freedom of speech is politically effective way to protect minority speakers. Although the government has a limited interest in protecting children from indecent materials, it is ultimately a parent’s responsibility to do so. The Internet is a technology that is not going away, and children need to be taught, by their parents, how to deal with the available content.