TechKnowledge No. 11

New Wind in the Sails of the Censorship Crusade?

By Adam D. Thierer
July 6, 2001

Indecency and obscenity are in the news again. Of course, it’s difficult to recall a time when they weren’t in the public eye, both literally and figuratively. America’s love-hate relationship with pornography ranks as one of great paradoxes of this country’s history. While a deep puritanical streak runs throughout America’s history and culture, it is equally clear that Americans possess a seemingly insatiable appetite for materials of a prurient nature.

Nowhere is this more evident than in cyberspace. Despite the many informative Web sites, interactive tools, and unique business services that are available online, the adult entertainment industry is the only consistently profitable commercial sector on the Net today. And that isn’t happening because a handful of perverts with big bucks are keeping all these “XXX” sites afloat. It is a mass market phenomenon, with tens of millions of Americans surfing the Net for adult-oriented fare.

But while the phenomenon makes for interesting discussion in college sociology classes, the real question is: What, if anything, should public policymakers be doing about it? Legislators and regulators are always engaging in political grandstanding and demagoguery on the issue, claiming that they “need to clean up TV and the Internet,” usually “for the sake of our children.” Rhetorical sermonizing is one thing, but regulatory activism is quite another. And if the recent words and actions of certain conservative groups and Bush administration officials are any indication, the pro-censorship forces appear to be readying a new push to police pornography and regulate obscenity. For example:

  • Patrick Trueman, director of government affairs for the American Family Association, has called for the prosecution of Yahoo!’s corporate leaders since he feels the world’s most popular Internet portal is providing obscene materials on its site. On the AFA’s Web site, Trueman says, “This is something either the Justice Department will handle, or we will continue to up the ante with the Justice Department, providing them inescapable proof Yahoo! is trafficking in illegal material. So we’re going to keep at this until there is a prosecution, or at least an investigation of Yahoo!”
  • Wired News recently reported that the AFA, along with 12 other pro-family groups and two Republican members of Congress, Reps. Steve Largent (R-Okla.) and Christopher H. Smith (R-N.J.), met with Attorney General John Ashcroft in late May to encourage the Department of Justice to step up obscenity prosecutions. They were apparently seeking to hold the administration to promises President Bush made while campaigning for office that he would vigorously enforce obscenity laws.
  • One of the individuals involved in the Ashcroft meeting, Bruce Taylor, president of the National Law Center for Children and Families, told The Industry Standard before the meeting, “If I was a prosecutor, I’d be like a kid in a candy store,” when referring to the prosecution opportunities he feels are available to the current administration.
  • After the May meeting with the coalition of pro-censorship groups, Attorney General Ashcroft testified before the House Judiciary Committee in early June and declared that the Justice Department would be increasing its efforts to assist state officials bent on imprisoning the operators of sex sites that feature obscene images. “We try to be especially accommodating to local law enforcement to assist [state officials], and I would think that would be an objective of ours in this respect,” said Ashcroft.
  • Meanwhile, in early April, the Federal Communications Commission issued a bizarre set of policy guidelines outlining what qualifies as “indecent” speech on radio or television. The case comparisons used in the FCC policy statement are so vague and oftentimes contradictory that it led noted First Amendment attorney Robert Corn-Revere, a partner at the Washington law firm of Hogan & Hartson, to note that “the FCC’s broadcast-indecency standard remains today just what it was before the commission issued its guidance to the broadcast industry: clear as mud.” The FCC has also issued a number of high-profile fines in recent months for supposed indecent radio broadcasts.

In sum, it appears that a renewed censorship effort is underway by many religious activists and conservative leaders, aimed at getting the Bush Administration to take up the pro-censorship crusade on their behalf. These efforts seem a bit ironic, however, given that conservatives are fond of talking about “parental responsibility” but seem to want to pass the buck to Big Government when it comes to controlling their children’s viewing or listening habits. Some conservatives argue that the Internet is just such an intrusive technology, and is so readily accessible to children of all ages, that legislators must step in and help shield children’s eyes from potentially offensive materials. Of course, in years past, they’ve said much the same thing about television, radio, cable TV, and even comic books, so in one sense, their tune hasn’t changed all that much.

Moreover, how intrusive is the Internet in reality? After all, parents must first purchase a computer, obtain an Internet access provider, set the system up, log on, and take a host of other steps before the Net is available to their children. If parents have taken such steps to bring this technology into the home, they should not then expect regulators to assume the remainder of their parental obligations once the kids get online.

Conservatives are also fond of making the argument that only political speech deserves strict First Amendment protection while other forms of speech and expression do not. As the Family Research Council Web site flatly states, “Free speech has nothing to do with pornography or nude dancing or cuss words. That stuff has the serious potential to stir up bad things.” Not exactly profound legal logic, but their point is nonetheless clear: policymakers should feel free to censor any forms of nonpolitical expression, especially those of a sexual nature. But this argument has always been based on a false distinction and shaky legal logic. All forms of speech and expression are important and deserving of protection by the First Amendment unless the rights of an individual are violated in the process.

Which leads to a final point about conservatives who favor censorship: they often group all sexually related activities and Web sites together in an attempt to craft blanket prohibitions. This is not good public policy. Most adult entertainment Web sites allow consenting adults to enjoy sexually related materials without engaging in behavior that poses harm to others. Online cyber-stalking or sites that traffic child pornography are different; rights are violated in these cases, and legal sanctions are appropriate.

In the name of “protecting children,” policymakers oftentimes end up treating us all like juveniles. The conservative groups and political leaders that are encouraging this renewed censorship crusade need to start taking their own first principles of personal responsibility and parental decision-making more seriously.

Adam Thierer (athierer [at] cato [dot] org) is the director of telecommunications studies at the Cato Institute in Washington, D.C. To subscribe, or see a list of all previous TechKnowledge articles, visit www.cato.org/tech/tk-index.html.