Pushing Back on Labeling

August 4, 2006
Filed under Free Expression
On Thursday we sent a pair of letters to the Hill opposing legislation that would force Web site operators to tag a broad range of legal, socially valuable material with a government-approved warning label identifying the material as "sexually explicit." The move is the latest congressional effort to place unconstitutional controls on Internet content. CDT sent one letter to the Commerce Committee, which included the labeling provision in a major telecom bill, and another to the appropriations committee, urging lawmakers to remove the measure from the massive Science-Commerce-Justice-State appropriations package, to which it was recently appended. What's particularly troubling is that lawmakers have added the labeling mandate to two unrelated bills without any hearings or debate. Worse still, the committees that included the labeling language do not have any jurisdiction over the issue. The labeling mandate is in fact a criminal law that authorizes stiff prison sentences for violators. That jurisdiction rests with the Judiciary Committees, which have never considered the legislation. This is stealth legislating at its worst. Unless the labeling language is stripped from these bills, Congress may create a wholly new crime that targets individuals engaged in legal and constitutionally protected conduct, without any consideration of the consequences. I seem to remember that the Senate used to be considered America's "greatest deliberative body." Here's the first problem with mandatory labeling -- it will do nothing to protect kids. Hundreds of thousands of objectionable Web sites are operated well outside of U.S. law and won't be affected at all by such legislation. No child will be spared exposure to adult-themed content by dent of this law being passed. Second, the legislation will have a profoundly negative impact on the constitutional rights of American Internet users. The bill's vague definitions would sweep in a broad range of protected, worthwhile information including videos, books, television shows, movies, branding a massive amount of legitimate content with the equivalent of a digital scarlet letter. Victoria's Secret would plainly be covered by the law as would safe sex sites supported by banner ads, sites operated by artists selling their wares, all R -rated movies as well as many PG-13 content, music lyrics, online magazines, and more. The only way to avoid being forced to carry the warning label is to engage in self-censorship, and that is a result that the First Amendment does not permit. Finally, it is hard to understand how such a blunt instrument would help guide parents select content for their families, when voluntary ratings and tagging provides far more robust and granular information. All that it is likely to do is undermine existing ratings schemes, cause confusion and freeze innovation. Any of those concerns are enough reason to kill this unwise and unconstitutional legislation outright, but taken together they should send a clear message to lawmakers that this provision should be left on the cutting-room floor.