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WARNING: This Label Is Worthless

Lawmakers are again reaching for their favorite panacea in their futile campaign against online pornography: Web site labeling. It's good politics but bad policy. For a politician, child safety trumps free speech every day -- at least on the campaign trail.

In real life, though, the courts have consistently rejected Congress' repeated attempts over the years to turn the Internet into some sort of grand U.S. television network where all sites are labeled to one degree or another. Protecting children is a noble goal, the courts have ruled, but not at the expense of free speech.

The latest lawmakers to go down this constitutional rabbit hole are Senators Max Baucus (D-Mont.) and Mark Pryor (D-Ark.). In a proposal floated last week, the two senators pushed all the hot buttons to promote the use of warning labels on Web sites that contain material deemed harmful to children.

The Cyber Safety For Kids Act would require Web site operators to embed an electronic tag in their sites if the sites contain material harmful to minors. The Department of Commerce would develop the tags and require sites with obscene material to use the tags when registering or renewing domain-name registrations.

The tags would make it easier for filters to block the tagged material. As defined by the bill, that material includes any "communication, picture, image graphic file, article, recording, writing or other material of any kind that is obscene."

Adult sites would also be required to have a clean front page and age verification procedures in place. Violators would face fines from the National Telecommunications & Information Administration (NTIA).

The bill also attempts to put some wiggle room between previous federal efforts to restrict pornography, tweaking language in previous bills from "indecent material" to harmful for minors. It also targets sites "primarily operated for commercial purposes."

"I wish the solution to protecting kids on the Internet was as easy as shutting every one of these sites down, but it's not," Pryor said at a Capitol Hill press conference. "However, government can and should be a better partner to parents by providing basic protections. This legislation helps meet that goal and gives parents and teachers peace of mind."

If the proposal sounds vaguely familiar, it should. Last year, Baucus and Pryor led an unsuccessful effort to force the Internet Corporation for Assigned Names and Numbers (ICANN) to quarantine adult material into an .XXX domain. ICANN said it wasn't in the censorship business.

The dilemma for lawmakers, of course, is that pornography is protected free speech, although lawmakers like to blur the distinction between pornography and child pornography to sensationalize the need for labels. Child pornography is illegal in virtually every country of the world, online or off.

Requiring tags would amount to a restriction of free speech, even if many find pornography objectionable. The tags would also discriminate against non-pornographic sites about, say, adolescent sexuality with a few graphics to help the storyline along.

Moreover, according to the Center for Democracy and Technology (CDT), the broad "commercial" language of the bill could be interpreted to mean otherwise legal sites that carry banner ads promoting safe sex.

"Bottom line, we want to keep our kids safe when they're on the Internet," Baucus said when introducing the legislation.

Top line, if Congress rushes to this fool's errand, the courts will -- yet again -- reject the idea of labeling. "There is no constitutional difference between an HTML meta tag and an actual label on the site," said John Morris of the CDT. "Neither is likely to be held constitutional."

Moore points out that the very industry Baucus and Pryor wish to target, adult pornography sites, is "incredibly easy" to block since the meta tags already include multiple references to sex and XXX. "The more effective way to protect kids is through education and filters," Morris suggests.

That's not enough, argues Pryor, who claims the government has turned a "blind eye to online pornography." He said adult sites have grown from 14 million in 1998 to more than 400 million in 2005.

"The statistics are staggering already, but if we sit back and do nothing to protect kids on the Internet, the problem will only escalate," Pryor said.

Maybe, but the only thing likely to escalate under Baucus and Pryor's bill is the taxpayers' legal bills for defending another unconstitutional run at free speech on the Internet.