July 28, 2008 -- The Federal Communications Commission may set aside spectrum for a free wireless broadband network. In a country that ranks 15th in broadband deployment, the promise of the new network may offer those still on the wrong side of the digital divide a lifeline.
But the plan comes with a peculiar hitch: in order to win the spectrum and use other portions of it for paid services, the network operator must filter or block all "pornographic" text or images, and all text or images (of any sort) that might be "harmful" to a 5-year-old.
There is not a digital bucket big enough to hold all the content that would fit within this definition. By requiring the Internet to mirror a level of discourse commonly found in the neighborhood kindergarten, the new network would be forced not only to deny adults access to legal "adult" content but equally to information critical to informed participation in civic life. If you follow the logic of the rule, the network would have to block the news because a great deal of it discusses disturbing events or depicts these events through photographs and video clips.
Are pictures of bombed markets in Iraq appropriate for a 5-year-old? And of course blogs, social networks and other user generated content sites would have to be excluded as well since it would be impossible to ensure that all the content would pass the pre-school censorship test.
The proposed restriction is not only mind-numbing, it is also blatantly unconstitutional. The Supreme Court has only allowed narrow categories of content such as obscenity or child pornography to be prohibited outright and has never allowed efforts to shield children from content that was age-inappropriate to prevent adults from accessing that content.
Over a decade ago, the Supreme Court struck down restrictions on so-called "indecent" content on the Internet, holding in a landmark case that the Internet was deserving of the highest level of constitutional protection. While recognizing the compelling interest in protecting children, the court reasoned that censorship was unwarranted because a less restrictive means of protecting kids was available – user-controlled filtering software that parents could deploy to place limits on the Internet content that came into their homes.
In the 10 years since, the court has not only reaffirmed that judgment, but the sophistication and variety of tools available to users to manage children's access to Internet content has grown exponentially.
The FCC's censorship proposal has sparked a firestorm of opposition from industry and free expression advocates alike. Last Friday, These comments make clear that if the FCC insists on tying the creation of a free nationwide broadband wireless network to government mandated censorship, the constitutionality of the plan will surely be challenged in court and will be struck down.
But it may be too much to expect the FCC to see the light when it comes to free speech. The commission still sees the media landscape through the worn-out lens of broadcast regulation despite the rise of the Internet and 30 years of technical innovation. It has pressed ahead with indecency fines against broadcasters for "fleeting expletives" and "wardrobe malfunctions" only to be rebuffed by the courts. Whether we can expect the commission to exercise better judgment in this instance remains to be seen.
Leslie Harris is president and CEO of the Center for Democracy and Technology.