Use old-fashioned vigilance to fight high-tech indecency

You don’t allow pornography and sexually explicit material in your classrooms—but how can you keep it off your computers? This may be more difficult than you think. First, there is the question of whether you can legally restrict expression. Second, there is the general question of how you carry this out. You have to combat sexually explicit materials that can exist in many internet arenas—chat rooms, bulletin boards, web pages, and in both text and graphics.

Legal controls on the internet—especially those restricting sexual material from children—is a critical concern for schools and parents.

In fact, this has been the subject of a recent White House summit and a U.S. Supreme Court case. This case, Reno v. ACLU, 117 S.Ct. 2329 (1997) has implications for schools and internet restrictions. This case involved the constitutionality of two provisions in the 1996 Communications Decency Act (CDA), the principal purpose of which was to shield minors from sexually explicit material on the internet. The Court found these provisions were overbroad and impermissibly encroached on the rights of those engaged in constitutionally protected speech, thus finding the CDA unconstitutional.

As a result, you may still restrict speech on the internet, but to do so, you will have to be cautious, and oddly our old fashioned methods of enforcement may still be the best.

The two controversial provisions provided criminal sanctions for the knowing transmission of material deemed to be “obscene or indecent” or knowingly sending or displaying any communications deemed “patently offensive,” to anyone under 18 years of age. The CDA also provided defenses for those who took “good faith, reasonable, effective…appropriate actions” to prevent minors from gaining access to prohibited materials or restricted access by requiring users to provide forms of age proof such as verified credit card or an adult identification number.

In its opinion, the Court acknowledged a line of cases that allow government regulation of certain broadcast media under narrow conditions. Specifically, regulation has been upheld where there has been a history of extensive regulation, where a scarce number of broadcast frequencies is available, or where the nature of the broadcast medium is “invasive.” But the Court held that the internet has not experienced a history of regulation, is not a “scarce” communications resource, because it involves low costs and “relatively unlimited” opportunities to engage in speech, and is not as “invasive” as radio or television, because an individual must take affirmative steps to access these internet sites, and warnings usually precede sexually explicit images. The Court found no conditions that would allow broad regulation in this case.

In finding the CDA to be impermissibly vague, the Court faulted Congress for failing to clearly define the terms “indecent” and “patently offensive.” It noted the potential chilling effect of such vagueness on communication over the internet. Individuals uncertain about the terms’ meanings might not speak out or express themselves for fear of criminal prosecution under the CDA. The Court also raised concerns about discriminatory enforcement of the CDA against those engaged in unpopular speech.

The Court further concluded that the CDA went overboard. “Indecent” sexually explicit material has always been protected by the First Amendment as long as it is not deemed “obscene,” and the Court noted there are nonpornographic materials with serious educational or other value that could be generally considered “indecent” or “patently offensive” and thus could have been subject to the CDA’s sanctions. For instance, parents using the internet to send materials concerning birth control or other sexual advice to their 17-year-old could face criminal liability under the terms of the CDA.

Although the Court acknowledged the important governmental interest in shielding children from harmful material on the internet, the Justices concluded the government had not met its heavy burden of showing the absence of less restrictive alternatives to accomplish this goal. It rejected the government’s assertion that a total ban on “indecent” material was necessary to protect children.

The Court observed that software might soon be widely available to allow parents (and schools) to screen out internet materials they deem inappropriate. The Court also suggested other alternatives, such as “tagging” indecent materials or instituting government regulations for different portions of the internet.

Having identified these alternatives and Congress’ failure to address potential problems posed by the CDA, the Court concluded that the CDA was not sufficiently narrow and was therefore unconstitutional.

Although the efficacy of internet “content filters” is questioned by some experts, such technical remedies — coupled with student responsibility and old-fashioned adult supervision — will have to serve to protect students from indecent materials on the internet. Control over what students send out onto the internet is another matter. And there, educators are on firmer legal ground.

The Supreme Court already allows schools to punish students for offensively lewd, indecent, and vulgar speech — especially when the target audience includes younger children. In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the Court upheld a school’s decision to suspend a student for delivering a lewd campaign speech at a student assembly. It is not a stretch to apply Bethel to student speech over the internet. Whether campaign-related or not, pervasively vulgar material accessed, created, and sent by students to other students over the internet or local networks may be restricted by school officials. The rationale in Bethel is applicable — schools must be permitted to educate students for citizenship and to instill fundamental societal values. The Court in Bethel held that “[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”

How exactly to regulate such speech is not clear. Advocates from both sides of the CDA issue are working to develop private, industry-based alternatives to government regulation of internet speech. Until these methods are available, your schools may choose to extend their policies against pervasively vulgar speech to include student communication on the internet. They then must rely on old-fashioned methods of monitoring and enforcement as well.

Although the outcome in Reno v. ACLU represents a victory for opponents of broad governmental regulation of the internet, it makes it more difficult for parents and schools to shield children from sexually explicit material. In addition, it underscores the difficult job your schools have in balancing the educational benefits of free inquiry with the need to control the curriculum and protect students.

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