A thirteen-year-old with a smartphone in 2019 has greater access to pornography than the most depraved deviant could have dreamed possible two decades ago. At the time of the landmark Reno v. ACLU decision to permit online pornography in 1997, the Internet was still in its infancy. In his majority opinion striking down anti-pornography provisions in the Communications Decency Act, Justice John Paul Stevens explained that existing precedent allowing government to regulate the “broadcast medium” did not apply to the Internet because “the Internet is not as ‘invasive’ as radio and television.” This seems laughable today….
There are at least three politically feasible legislative solutions to the pornography crisis that should pass constitutional muster under the guidelines established in Reno. The first solution is to regulate pornography at the Internet Service Provider level by passing a law or enacting a rule requiring ISPs to provide a default version of the Internet that is filtered of indecent content, while allowing adult users the ability to opt in to an unfiltered version of the Internet.
There has been much talk about the implementation of an opt-in system in Great Britain. In an effort to protect children from online pornography, former Prime Minister David Cameron threatened that Parliament would regulate ISPs and force them to implement filters if they did not take action themselves. Soon, Great Britain’s four major ISPs self-regulated. One of the larger ISPs, Sky Broadband, has been the most aggressive in implementing an opt-in system, setting up a ratings system that provides differently filtered versions of the Internet with a default pornography-free setting of 13+. Sky also allows users the ability to customize their filters by blocking specific websites or adjusting the rating based on time of day. Parliament never passed a law requiring this type of action; mere talk among British politicians encouraged the ISPs to self-regulate.
What happened in the U.K. could serve as a political model for the U.S. Ideally, if regulation became a political issue, American ISPs would set up content filters themselves, preferring a free-market approach to dealing with government regulators. And if American ISPs chose not to self-regulate, implementing a regulation requiring ISPs to set up an opt-in system would comply with the Supreme Court’s guidance from Reno, as long as opting in to the unfiltered Internet were not deemed an undue burden.
Another option, likely to face greater legal skepticism, is to regulate pornography websites through domain “zoning.” O’Connor and Rehnquist suggested “‘gateway’ technology” that “requires Internet users to enter information about themselves—perhaps an adult identification number or a credit card number—before they can access certain areas of cyberspace, much like a bouncer checks a person’s driver’s license before admitting him to a nightclub.”
In order to accomplish a “zoning” solution, Congress could pass a law (or perhaps the Department of Commerce, in consultation with the DOJ and potentially the Federal Communications Commission, could enact a rule) migrating all pornography sites to, for example, the .xxx domain, and requiring users to enter an age verification. This solution should pass constitutional muster, provided the verification process did not constitute an undue burden. It would also be an easier way to handle unfiltered pornography, as all pornography and indecent material that showed up outside the zone (for example, on a website with a .com or .org domain) could be deemed illegal and referred to the DOJ for prosecution.
The last solution is fairly aggressive and touches on a familiar issue. There has been much discussion among conservatives about rewriting Section 230 of the Communications Decency Act: the immunity carve-out for Big Tech companies that allows them to avoid civil liability for content posted by users on their platforms. This protection also applies to user-submitted pornography aggregation sites—imagine Instagram or YouTube, but for pornography—which make up the majority of free pornography sites on the Internet.
The above excerpt comes from a Nov. 2019 story by Terry Schilling in First Things.