The senator who vowed to protect children from indecent material on the Net has spawned a son of the now-defunct Communications Decency Act.
In June, the Supreme Court ruled that a controversial part of the CDA unconstitutionally censored protected speech because it prohibited transmitting or displaying indecent material to minors via the Net. The high court said the law was too broad and could have criminalized simply posting Web pages about safe sex, art, or medical issues, for example.
In response to pleas from family and religious groups, Sen. Dan Coats (R-Indiana), the key Republican sponsor of the CDA, introduced Saturday what some are calling the "CDA II." Coats's new legislation prohibits commercial Web sites from distributing to those under age 17 any material that is "harmful to minors."
But the bill isn't just about pornographic images. It also applies to any "communication, article, recording, or writing" that depicts "in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals."
The material would have to "lack serious literary, artistic, political, or scientific value" to fall under the law. Violators could be fined up to $50,000 and imprisoned for six months. Similar to the government's defense of the CDA, Coats says his bill is constitutional in part because for-charge sites can avoid prosecution if they attempt to verify age by requiring visitors to present a credit card, debit account, adult access code, or personal identification number before gaining access to a site.
"We did a comprehensive study, talking to legal experts and studying the ruling in the Communications Decency Act. He is confident that it will pass constitutional muster if it is passed by Congress," said one Coats staffer. "This bill will help protect the innocence of America's children."
When the CDA was killed, Coats promised to go over the ruling with a fine-tooth comb in order to draft legislation that addressed the concerns of parents who wanted their children safeguarded from the Net's red-light districts.
"The CDA cast too broad a net. This legislation is a shift in tactic. It goes after a very specific activity," added David Crane, Coats's legislative assistant, who worked on the bill.
Rep. Rick White (R-Washington) lobbied to replace "indecent" with "harmful to minors" in the first version of the CDA; however, the idea was extinguished during a committee meeting. Those who argued against the CDA said "indecent" was far too broad a term, but they feel the same about "harmful to minors."
Those who waged battle against the CDA for more than a year are worried that the new law won't be effective without stomping on free speech or putting undue burden on commercial Web sites.
"In the CDA case, we discovered that age-verification defenses don't work," said Emily Whitfield, a spokeswoman for the American Civil Liberties Union, which filed the initial federal court challenge to the law.
The ACLU is reviewing Coats's legislation now, but already there are concerns with its definitions. "Safe sex and gay and lesbian information--some people would say that is harmful to minors," Whitfield added today. "The idea of narrowing the law to commercial distribution doesn't necessarily avoid constitutional issues. For example, the Vanity Fair cover of [a naked and pregnant] Demi Moore would have been available to minors on a newsstand and online. In the first case, the government said the cover would have been restricted under the [CDA]."
Currently, the Justice Department is fighting another lawsuit to overturn a separate provision of the CDA that makes it a felony to use a telecommunications device to knowingly transmit any "indecent" comment or image "with intent to annoy." The creators of Annoy.com, who filed the suit, admit their coarse commentary site is for mature audiences but say they have a constitutional right to get a rise out of people. (See related story)
The publisher of the site says Coats's bill is no better than the indecency and minors provisions in the old CDA. "What if you're like Annoy.com and all you're selling is T-shirts and talking about safe sex--would we be included? Requiring a credit card means that people who don't have good credit can't access this information," Clinton Fein, Annoy.com's editor and publisher, said today. "It's going to be fought if it's passed."