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First Amendment experts urged a special study committee yesterday not to seek to protect children against Internet pornography by recommending measures that fail to pass constitutional muster.
Johnson said it is possible to protect children and comply with the First Amendment as long as certain things are kept in mind. When considering restricting content, he said, it is important to realize that what is being restricted is speech. Before heading in that direction, he said, there must be a compelling government interest, and the proposed rules must be narrowly tailored.
Johnson said this point was best made by Supreme Court Justice Felix Frankfurter in a 1957 ruling, Butler v. Michigan: \"You cannot burn down the house to roast the pig.\"
Where government frequently errs in its attempts to restrict, Johnson said, is by drafting provisions that are overly broad or too vague. A too-vague rule keeps individuals from knowing specifically what is prohibited, he said, so they are often compelled to \"steer a wide path\" around potentially objectionable activities. That has the effect of chilling speech, he said. An overly broad provision \"sweeps away things that are constitutionally protected\" as well as the intended target, he said.