Friday, October 27, 2006
COPA: Minors and the Clark Kent problem
COPA makes repeated use of the phrase "with respect to minors." This is particularly critical in the last prong, that establishes the idea of serious value for minors. It also invokes the idea of prurience with respect to minors.
What is a minor here? COPA defines it as someone under 17 years of age. But is the term to be applied with some kind of Boolean AND or OR logic? Does a passage need to have serious value to all minors? Or to the same minors who might otherwise be harmed?
Anyone who has taught school (I have substitute taught) knows that there is enormous range of congitive and moral development within any specific age. Generally, kids raised in homes with more advantages develop more rapidly, and despite all the horrors reported in the media these days, have learned how to use the Internet responsibly. I often say that learning to use it is analogous to learning to drive a car. But there is always a large range. There are kids (often those in special eduction) who might be tantalized by some materials on the Internet and not be able to grasp the cultural meaning of the same materials. (When I subbed, most of them just wanted to look at hip-hop online.)
The media has recognized this by presenting kids with a wide range of abilities, including super abilities. TheWB/CW's "Smallville" series started in 2001 with teenage Clark Kent (Tom Welling) as a freshman in high school, presumably at the age of 14. (Okay, in Sci-Fi, general relativity makes his real age unknown since he came from another planet.) But he is obviously cognitively way ahead of his peers. Ironically, his biggest personal problem is something like "don't ask don't tell"; he can't reveal his true identity to anyone. Therefore, in the Pilot he is pilloried and "crucified" Mel-Gibson-style on the Scarecrow, partly because his adoptive dad won't let him go out for football. But "Clark" would not be harmed by salacious material on the Internet, and he would obviously get its serious value.
So does "minor" mean an average minor (whatever that is)? Is it the vulnerable minor in special ed? Is it more like somebody like Clark, or the character Brendan (Joseph Gordon-Levitt) in the movie "Brick"?
I've seen very little about this question. The question may have been printed in the arguments. But there has been very little.
One other note: I did hear a lot of the oral arguments on March 2, 2004 at the Supreme Court. The account is here. I also heard some oral arguments about the original CDA in 1997.