DEBATE
Online obscenity law treads on free
speech
The issue: U.S. Supreme Court is considering a First
Amendment challenge to a law aimed at keeping children 17 and under from
accessing sexual material on the Internet. This is one of two opposing
views on the case, which was also the topic of a recent symposium at
Albany Law School.
In 1964, U.S. Supreme Court Justice Potter Stewart
famously announced that he could not define criminally punishable
“obscenity,” but “I know it when I see it.” Forty years later, with more
sexual information available than ever before, with pornography in easy
reach on the Internet and periodic outbursts over “indecent” displays
like Janet Jackson's Super Bowl performance, America is still trying to
figure out how sexual expression should be treated by the law. What is
protected by the First Amendment? What — if anything — should be
suppressed? And what is so unacceptable that its creators should be
fined and thrown in jail?
The current legal incarnation of this age-old debate
is a lawsuit called Ashcroft vs. ACLU, now pending before the Supreme
Court. The plaintiffs in the case — which include Artnet Worldwide,
Condomania, OBGYN.net and Philadelphia Gay News — are challenging the
1998 Child Online Protection Act. Like many laws and arguments about sex
and censorship, COPA's title invokes the rationale of child protection,
but if upheld by the Supreme Court, it would affect the ability of
adults — not just children and teenagers — to publish, read and view
speech about sex online.
COPA makes it a crime to depict or describe sex or
nudity on a Web site that is “available to any minor” (defined as anyone
under 17), if the words or images are considered “prurient” and
“patently offensive” for minors according to “contemporary community
standards,” and if they lack “serious literary, artistic, political or
scientific value” for minors.
But with many different cultural and moral “community
standards” in America — not to mention minors of many different ages —
it is not clear how police, prosecutors, judges and juries are to make
these judgments. What is “patently offensive,” what lacks “serious”
value, and what appeals to the “prurient interest” of those under age
17?
COPA's problematic legal test was borrowed from the
Supreme Court's longstanding definition of criminal obscenity; then “for
minors” was tagged on at the end. But this doesn't make the test any
fairer or easier to apply in our pluralistic society. As a federal court
of appeals that has twice invalidated COPA explained, “contemporary
community standards” are difficult enough to apply in the physical
world; in cyberspace, they are meaningless.
Web publishers can't restrict access to their sites
based on geographic location. Thus, they run the risk of criminal
prosecution under COPA by the most puritanical city or town in America
unless they conform to its standard of propriety for youth.
Would Condomania pass muster in Mississippi? What
about other examples cited in the COPA case, such as the Kama Sutra
screen saver, Susie Bright's “Sexpert” column on Salon.com, or Riotgrrl,
which describes itself as a Gen-X “Web 'zine for younger women,”
specializing in “irreverent cyber and pop culture”?
Web publishers also can't identify the age of visitors
to their sites, or separate out those under 17. Recognizing this, COPA
provides an “affirmative defense” to a criminal charge if the publisher
attempts to screen out youngsters through a credit card or adult ID
system. Ironically, commercial pornography providers are just about the
only ones on the Web who do this. Neither OBGYN.net nor Androgyny Books
nor the thousands of other nonpornographic sites with content that a
local community might consider “patently offensive” wants to discourage
access by minors or adults, incur the cost of ID screening or
self-identify as a pornographer by this sort of blockade.
However the Supreme Court decides Ashcroft vs. ACLU,
one thing it is unlikely to question is the assumption that minors are
harmed by reading or viewing explicit sexual material. Although there is
no empirical evidence that this is true, to many adults it probably
seems self-evident. The real issue here isn't harm, though — at least
not in any objective sense. It is, instead, a feeling that for younger
children, it is important to preserve sexual "innocence," while for
older ones, pornography may teach distorted sexual values.
Unfortunately, censorship laws such as COPA do nothing
to educate youth about sexual realities or responsibilities. Only
accurate, comprehensive sexuality education can do that.
Two years after announcing, “I know it when I see it,”
Justice Potter Stewart changed his mind about allowing the government to
ban sexual speech, however apparently compelling the rationale.
“Censorship reflects a society's lack of confidence in itself,” he
wrote. “It is the hallmark of an authoritarian regime.”
By Marjorie Heins — the author of “Not in Front of
the Children: 'Indecency,' Censorship, and the Innocence of Youth”
(2001). She directs the Free Expression Policy Project (http://www.fepproject.org).
30 March 2004
http://www.timesunion.com/AspStories/story.asp?storyID=232787
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