There's been a lot of talk about a bill introduced in the General Assembly that would “require Internet service providers to provide digital blocking of sexual content and patently offensive material . . . and allow consumers to deactivate digital block upon payment of a twenty dollar ($20.00) fee.” This legislation is clearly unconstitutional, inevitably ineffective, and ultimately counter-productive.
The constitutional flaws with this bill are so extensive that we will note only a few.
* The bill requires that “sexual content and/or patently offensive material as defined in §11-31-1” of the General Laws be blocked. But the definitions referred to, by §11-31-1’s own acknowledgement, address content that is protected by the First Amendment, and include works that have “serious literary, artistic, political, or scientific value.” Netflix, sex education sites, the text of James Joyce’s Ulysses and an ever-expanding universe of material on the Internet would need to be policed and blocked by Internet service providers (ISP).
* The requirement that consumers pay a $20 fee in order to deactivate the filter imposes a tax on the exercise of free speech rights, based solely on the content of the material being sought. For decades, courts have struck down such content-based taxes on speech as an affront to the First Amendment. In any event, it is our firm belief that eternal vigilance, not $20, is the price of liberty.
* The ISP would need to provide any person wishing to unblock the filter a “written warning regarding the potential danger of deactivating” the filter. The bill leaves unsaid exactly what that danger is, but it is certainly one that many people would question and contest. Under the First Amendment, the state cannot compel private individuals to issue on the government's behalf what is, at its core, a political opinion about the “danger” of access to “sexual content.”
* Upon pain of civil lawsuits and financial penalties, ISPs would have an obligation to respond to any complaint of “sexual content” that has “breached the filter.” The First Amendment simply does not allow the imposition of such a burden. Imagine a law requiring libraries, upon threat of fines, to respond to any complaint it received, no matter how frivolous, that something in the newspapers it archived was libelous and needed to be blocked from further viewing.
Inevitably, this legislation will be ineffective because Internet filtering devices are not sophisticated enough to filter whatever it is that this bill requires them to filter. The devices are bound to be both under-inclusive – allowing lots of prohibited “sexual consent” to get through – and over-inclusive – by blocking a wide range of important educational, political and artistic speech on the Internet. Reports that the ACLU of Rhode Island has issued over the years -- here, here, and here -- have documented just how poorly Internet filtering devices work, all to the detriment of the public, to intellectual freedom, and to the promotion of access to knowledge that the Internet is designed to facilitate.
Finally, legislation like this is counter-productive because it can only encourage creative attempts to circumvent the filters. Our examination of the use of Internet filtering in the school setting revealed teachers bemoaning the time students spent trying to outwit the filters and gain access to “prohibited” material. As Mark Twain famously wrote when a library banned The Adventures of Huckleberry Finn: “They have expelled Huck from their library as ‘trash and suitable only for the slums.’ That will sell 25,000 copies for us sure.”
A recent General Assembly news release states that “several changes may be made to the legislation to address questions about the intent of the legislation and the technical capabilities needed to institute the law if passed by the General Assembly.” Respectfully, there are no changes that could make this bill constitutional. It should be rejected.
Instead, please take your $20 and donate it to the ACLU to help us fight this attack on the First Amendment!
