Constitutional Issues in Laws to Protect Kids

Last week, we touched on several pieces of legislation aimed at protecting kids from online predators. Although all are well-intended, there are unintended consequences, which the Taxpayers Protection Alliance (TPA) and, jointly, the American Civil Liberties Union and Americans for Prosperity, outlined specifically regarding the EARN IT Act, as well as constitutional concerns.

Here’s what those look like.

The First Amendment guarantees fundamental freedoms, including freedom of speech. In protecting kids from online sexual predators, Child Sex Abuse Material (CSAM) is not protected, as its production involves exploiting a child (New York vs. Ferber, 1982).

But what if no crime against a child is involved? For example, CSAM created as a painting or sculpture? Or, a nude photo of an actual child? In Ashcroft v. Free Speech Coalition (2002), the Supreme Court ruled that banning artistic depictions was unconstitutional because it did not involve harm to the child. Moreover, these depictions may not even be considered obscene by standards defined in Miller vs. California (1973).

This issue may re-emerge with the advent of artificial intelligence, and again, the Supreme Court may rule against overly broad restrictions on First Amendment rights - placing the onus of protecting children onto lawmakers and others. Thankfully, private companies, like Amazon, Instagram (which is owned by Facebook/Meta), Twitter, and others, voluntarily remove and report potential instances of CSAM to the CyperTipline, managed by the National Center for Missing and Exploited Children, and account for approximately 99% of those reports.

Concerns about the Fourth Amendment, which protects against “illegal search and seizure by the government” have been most pervasive. In a nutshell, it would be unconstitutional for the government to mandate that a tech provider hand over instances of CSAM without a warrant. Again, tech companies voluntarily provide this information to the CyberTipline, and any legislation that explicitly forces companies to report CSAM violates the Constitution.

Why are these constitutional concerns important for parents, child advocates, and others?

When legislation intending to protect children violates the Constitution, the Supreme Court will render portions of it moot, diluting the law’s intended impact. Congress will then reconvene to pass new legislation on the matter, and while they craft and vote on a new bill, laws protecting children will be back at square one.