U.S. children ages 8 to 18 spend over 7 hours a day using electronic media. This includes television, music, computer use, and video game use.1 This also means that children may be exposed to age-inappropriate content, online marketing, online harassment and bullying, and inappropriate data collection activities. Parents, schools, and website providers all have different roles to play in protecting children when they are online. It is not unusual to hear about cases where website operators run afoul of the laws that attempt to protect children:
Although most people agree that children should be protected when they are online, they do not always agree on how that should be accomplished. For example, some people suggest that a parent should monitor a child’s internet access and decide if the child’s internet activities are acceptable. Others suggest that laws should be in place to protect the child even if a parent is not monitoring the child’s internet use. As you will see in this chapter, several laws have been enacted to protect children. Most of these laws are directed at the website operators who provide online content to children.
However, even when enacting laws, challenges still exist. These include:
In 1993, the New Yorker published the now-famous cartoon by Peter Steiner with the caption, “On the Internet, nobody knows you’re a dog.” It is just as hard to separate children from adults on the internet. To protect children, you must be able to identify them. Although you can require identification from restaurant customers to ensure they are old enough to purchase alcohol, it is not easy to require identification when users access a website. Most users can easily remain anonymous when they are online. This creates a problem for website operators. Most of the laws that aim to protect children while they are online require website operators to be able to distinguish children from adults.
NOTE
The Entertainment Software Rating Board (ESRB) is a self-regulating nonprofit that assigns independent ratings to computer and video game content in the United States. This includes games available online. The ratings help parents select appropriate games and other content for their children. Website operators can voluntarily rate their websites according to ESRB so that parental controls work properly. Visit http://www.esrb.org to learn more.
Website operators can use several methods to distinguish children from adults. These include:
The First Amendment, which is a part of the Bill of Rights, grants certain rights related to freedom of speech. It also protects freedom of the press and the free exercise of religion. First Amendment issues come into play on the internet in many different ways:
The U.S. Supreme Court has said that the right to freedom of speech applies to the internet.4 This means that the government cannot restrict an adult’s access to content on the internet. However, the government can restrict a child’s access to harmful online materials if the government has a compelling reason to do so.
When the government restricts a child’s access to objectionable online materials, other issues are raised. Does it violate a website operator’s rights to force it to censor material because a child might view it? If individuals are required to identify themselves before they can use a website, such as proving that they are not children, does that restrict their free speech? Does it restrict free speech if individuals are required to identify themselves by name in comments on a website? If libraries are required to use filters on computers to keep children from viewing objectionable content, does it restrict the free speech rights of adults who also use those same computers?
Many of these issues continue to evolve within the context of the laws discussed in this chapter.
The laws discussed in this chapter protect the privacy of children. They also protect children from harmful content. For the most part, this harmful content is content that would be considered obscene. Most people agree that children should not see obscene material. However, it is difficult to legally define what obscene material is.
I Know It When I See It
A 1964 U.S. Supreme Court case shows the difficulty of defining obscenity.5 In Jacobellis v. Ohio, a movie theater manager was convicted under state law of illegally possessing and exhibiting an obscene film. The state supreme court upheld the conviction. However, the U.S. Supreme Court later reversed that decision.
In this case, the Court agreed that the First Amendment does not protect pornography or obscenity. It disagreed about whether the motion picture was obscene. In the Court’s decision, Justice Potter Stewart expressed the difficulty of defining what is obscenity and pornography. He wrote, “But I know it when I see it, and the motion picture involved with this case is not that.”
This case was decided over 50 years ago. Yet the challenge of identifying obscenity still exists today.
The U.S. Supreme Court addressed this in 1973. In Miller v. California the Court said that for material to be identified as “obscene,” it must meet three conditions. The conditions are based on the average person applying contemporary community standards to a review of the material. The three conditions are that the material:
It is not always easy to apply this definition. What one person considers obscene, another person may consider healthy. Material that one person finds informative may be deemed tasteless by another. Material that is offensive to one person may be viewed as valuable by another. How a person views material is often influenced by societal, family, community, and religious values.