Wednesday, January 23, 2013

Can "protecting minors" and "purpose-driven legislation" create a slippery slope?

We often hear arguments for new legislation to “protect children”.  And we often hear that the freedom to possess or create something can be taken away if it serves no valid “purpose”.

The obvious application of these arguments is in the gun control debate, particularly with respect to possessing assault weapons or rapidly loading magazines, which do seem to have no legitimate use for most civilians.

You could use the same kind of thinking to restrict Internet freedom, particularly in the user-generated content area.  You could try to justify removing Section 230 downstream liability protections for service providers, for example to prevent reputation extortion or cyberbullying.  You could justify exposing ordinary sites or providers to more possibility to protect minors’ privacy (as with COPPA rules).  You could even justify some future reincarnation of COPA itself.

The “purpose” argument (used in gun control) because it can also play into a legal doctrine called “implicit content”, mentioned during the bench trial of COPA in Philadelphia in 2006. A blog posting or website object could be deemed illegal if the likely potential benefit that could be expected to accrue to the poster was illegal.  In that world, sites that earn money might actually be legally more legitimate, because making a living is a legitimate “purpose.”

So does gun control represent a legally slippery slope that can spread to other areas?

There's one other remark that has run in my mind about the Newtown tragedy in Connecticut.  It sounds as though Mrs. Lanza may have been considering not only committing Adam, but also taking away his computer access and his whole world.  It sounds as though she may have introduced him to weapons earlier to "make a man out of him".  It's a horrible thought, but quite common with some parents of disturbed teens boys.  The National Enquirer has claimed that Mrs. Lanza was a "Doomsday Prepper" and had probably preached to her son that the world would end on Dec. 21, 2012.    

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