Sex, Cyberspace, and the First Amendment

January/​February 1995 • Policy Report

The Cato Institute held a Policy Forum in the F. A. Hayek Auditorium on December 8 to discuss whether sex and violence in the media can lead to real‐​life effects and how those issues are being confronted in the world of on‐​line information. The speakers were Marcia Pally, president of Feminists for Free Expression and author of Sex and Sensibility: Reflections on Forbidden Mirrors and the Will to Censor; Stephen Bates, senior fellow at the Annenberg Washington Program in Communications Policy Studies and author of Battleground: One Mother’s Crusade, the Religious Right, and the Struggle for Control of Our Classrooms; and Mike Godwin, on‐​line counsel for the Electronic Frontier Foundation.

Marcia Pally: I want to begin by giving an indication of what is being censored today so we may have some idea of the range and scope of possible on‐​line censorship of the Internet. By the end of the 1980s book banning by public bodies had increased to three times the 1979 level, according to the American Library Association. The most censored books at that time included The Diary of Anne Frank, To Kill a Mockingbird, Of Mice and Men, 1984, Slaughterhouse Five, The Catcher in the Rye, The Adventures of Huckleberry Finn, and all the works of Steven King and young‐​adult author Judy Blume. Also included were dictionaries — Webster’s Seventh, Random House, Doubleday, and American Heritage — that give the definitions of dirty words.

The films banned by public bodies between 1980 and 1990 included A Passage to India, Victor Victoria, A Clockwork Orange, Zeffirelli’s Romeo and Juliet, and Splash. In 1992 the American Library Association reported a 28 percent increase in book‐​banning efforts above the increases seen through the 1980s. Also in 1992 People for the American Way reported a 50 percent increase in censorship in the public schools, the greatest rise in book‐​banning efforts in a decade. In 41 percent of the cases, efforts to restrict books were successful.

According to the American Library Association, in 1991 the fastest growing group of censored books was on the occult; the second fastest growing group was books on health and family life issues, particularly works addressing AIDS education, sex education, and drug abuse. By 1993 the emphasis had switched, with attacks against materials believed to be occult taking second place to challenges against AIDS education, sex education, and discussions of homosexuality.

It’s worthwhile asking what the appeal of censorship is before we get into legal issues. Why do people want to censor?

Censorship in the United States is offered to the public as an elixir of safety, like the traveling salesman’s tonics that would “cure” whatever ailed you. Proponents of censorship suggest that their cure will bring an improvement to life: rid yourself of pornography, or of The Catcher in the Rye, and life will be safer, happier, and more secure. Get rid of bad pictures, and you are rid of bad acts. This is the great soothing appeal of censorship — the promise of a better life, if only some magazine or movie or text is banished.

Will life improve if we ban some image, rock music, or movie? The mass‐​market pornography and rock n’ roll industries took off only after World War II. Before the 20th century few people, save a wealthy elite, saw any pornography whatsoever. Certainly they heard no rap or rock n’ roll. Yet violence and sexism flourished for thousands of years before the printing press and the camera. Today countries where no sexual imagery or Western music is permitted — countries such as Saudi Arabia, Iran, and China — do not boast strong records of social harmony or strong women’s rights records. For millennia teenagers have managed to become pregnant without the aid of sexual imagery, rock n’ roll, or matrimony. In Intimate Matters: A History of Sexuality in America, John D’Emilio and Estelle Freedman note that up to one‐​third of births in colonial America occurred out of wedlock or within eight months of obviously hurried marriages.

In light of the historical record of violence and sexual abuse, it is unlikely that their cause lies in a Johnny‐​come‐​lately industry such as mass‐​market pornography or rock n’ roll or rap. Banning sexually explicit material is not likely to reduce those abuses or assist women and children. The social science data come to the same conclusion. There are a few points that I’d like to go over.

First, the claim that sexual material is more violent today than it was earlier is unfounded. Longitudinal studies show that sexual material was decreasing in its violent content through the 1980s. Second, the claim that sexual imagery causes aggression finds no support either in field studies or in laboratory studies. That conclusion was reached by the surgeon general’s report and — surprising to many people — by the Meese commission. The publicity around the Meese commission’s report suggested that sexual imagery does cause violence, but the overview of the science by Dr. Edna Einsiedel found that it does not.

Third, the idea that kinky or “degrading” sexual imagery promotes violence against women is also without support in the scientific data. The only reliable conclusion the surgeon general’s report reached was that subjects exposed to “kinky” sexual imagery estimated the prevalence of varied sexual practices more accurately than did control subjects.

Fourth, the research on sexually violent images is the least conclusive. A good deal of material seems to suggest that if you show males violent, nonsexual material, their aggression will increase in the laboratory. Yet if you show people Jane Fonda workout tapes in the laboratory and require that they follow the aerobic program, their aggressive responses will increase following the movie. The common denominator is physical arousal. If you increase heartbeat, blood pressure, galvanic skin response, and adrenaline level, a subject’s actions will be enhanced — not only aggression but also generosity and kindness. That tells us little about how violence occurs outside the laboratory and more about banning Jane Fonda.

By contrast, some researchers have investigated how violence occurs in life. In her field studies, Dr. Susanne Ageton found that, among adolescents, membership in a delinquent peer group accounted for three‐​quarters of all sexual aggression. Other factors, including exposure to sexual material and attitudes about women, accounted for 19 percent. Dr. Judith Becker, who served on the Meese commission, found that crimes committed by adolescents, like those committed by adults, are linked to sexual and physical abuse experienced in childhood and to alcohol consumption, not to exposure to sexually explicit material.

Fifth, the claim that more sexual crimes occur in geographical areas where sexual material is more available is also without support. Studies in the early 1980s, notably by Drs. Larry Baron and Murray Strauss, suggested that areas with higher consumptions of sexual material experienced higher sexual crime rates. In their later studies they discovered a confounding factor — the number of unmarried males between the ages of 18 and 30. When that variable is factored in, all other correlations disappear. The only factor that predicts sexual crime rates is the number of young unmarried men in an area.

Finally, I would like to say that the research in Canada, Europe, and Asia confirms the U.S. research on the supposed causal link between sexual material and crime rates. I recommend to you the Fraser committee report from Canada, the 1990 report from Great Britain by Drs. Dennis Howett and Guy Cumberbatch, and the extensive longitudinal studies in Denmark by Dr. Bert Kuchinsky, who found that after the liberalization of obscenity laws, sex crimes in Denmark decreased. Following the liberalization of obscenity laws and the increase in available sexually explicit material in other European countries, sex crimes decreased or remained the same. Note also that Japan has perhaps the most violent pornography on the planet; it has almost nothing to do with sex and a great deal to do with violence. Yet Japan reports one of the lowest sex crime rates in the world. Reporting of sex crime rates in Japan decreased in the 1980s when one would have expected, with the emergence of feminism in Japan, reporting of sex crimes to have increased.

If sexual lyrics and images do not cause violence, public attention should turn to what does. Violence is caused by long‐​standing familial, economic, and political problems, and it is those that need addressing. However popular it is today to blame two‐​dimensional media, basic values about men and women, race, religion, sex, money, work, and the mores of violence are learned early, at home.

Let’s return to the question of why censorship is so appealing. If the social science data don’t support it, if there are so many other substantive causes of violence, especially sexual violence, why does censorship remain such a popular solution or apparent solution to life’s problems? First, it offers the boost of activism. Sexual imagery is visible, tinged with the illicit, and far easier to expunge than deeply rooted injustices. Well‐​meaning citizens believe they can fight pornography, beat it, and win. Effectiveness is an important emotion, especially to Americans with their famous “can‐​do” mentality. Feminists are exhausted by fighting a sexist economy and sexual violence, and most Americans are at a loss in the face of a difficult economy and rapid changes in gender roles, family, and race relations. Censorship is a boon to those who want to feel they control their lives in complex times. In that respect, censorship has the same appeal as the fantasies that it assails. It provides a frightening but beatable monster — sexual material — and the pledge of a happy ending. As long as life is insecure, that promise will have a market. Like monster movies and pornography, blaming images is a fantasy that sells.

Censorship has another appeal, which pertains particularly to today’s topic of cyberspace. Blaming new‐​fangled technologies for social ills is a common effort; it is part of feeling singular, important, and special. Each generation is sure that it is unique and that the inventions of its day have the power to alter life in ways no other gadgets have. The first congressional hearing on television violence was convened in 1952, when fewer than 25 percent of households in America had a television and when the violence rates in this country were among the lowest in this century. So eager were people to blame the new‐​fangled thing called television for something, that they blamed it for a problem they didn’t have. And before television was thought to be the cause of violence, detective magazines and comic books were held, irrefutably, to cause juvenile delinquency. Before the comics, the nickelodeon surely gave the unwashed foreigners restive ideas. And before the nickelodeon, the novel surely was overturning Western civilization, and before the novel, when the masses were not literate, crown and church banned improper harmonics and bawdy ballads and fig‐​leafed some of Western civilization’s greatest art.

I would like to suggest that blaming images, sexual or nonsexual, will neither prevent violence or rape, nor will it fell sexism. Image blaming has no business being the basis of legislative or judicial remedies for sexism or violence. Consider the case of Ted Bundy, who, in his effort to avoid the death penalty, suggested that pornography made him murder and mutilate dozens of women. During his trials, some other information about Mr. Bundy came to light. For the first several years of his life, he and his mother and his mother’s sister lived with his grandfather, who had a bit of a temper. In addition to terrorizing the family and torturing animals, he threw Bundy’s aunt down a flight of steps, breaking several of her bones. By the age of three, Bundy was sticking butcher knives in his bed. Shortly thereafter, the effects of the grandfather’s violence became so aggravated and so obvious that the family insisted that Ted and his mother move out of the house. But pornography made him do it?

Would that the cure for society’s troubles were just a matter of eliminating bad words and images, would that it were so single issue or so easy. Censorship has always been more of a problem than a solution. It purges society of books, movies, music, and now cyberspace information — especially controversial information — while it leaves hate, racism, sexism, poverty, and violence flourishing just as they did before the printing press and the movie camera. Worst of all, censorship flatters us into thinking that we have done something to improve life, while we ignore what might be done.

Stephen Bates: I find two things about the Internet intriguing. One is that it’s almost pure communication; it’s like a public square where people don’t drive or smoke or do drugs or do any of the other things that government traditionally regulates.

The other thing is that the on‐​line world is a fascinating, rambunctious frontier culture. The Electronic Frontier Foundation is a very apt name. A century ago Frederick Jackson Turner, in his great essay “The Significance of the Frontier in American History,” wrote, “At the frontier the bonds of custom are broken and unrestraint is triumphant.” That’s the Internet today. A vibrant libertarian‐​anarchist counterculture dominates a lot of it — sort of the 1960s reborn. Just this morning I found in a bookstore Chaos and Cyberculture by Timothy Leary. He’s back!

There’s a very strong thread of anti‐​authority and generally anti‐​censorship sentiment on the Internet. A partial exception is advertising. There seem to be a lot of people on line who, to paraphrase Robert Nozick, approve of any act between consenting adults except an act of capitalism.

But more interesting are the sexual and related things that are sooner or later going to start upsetting would‐​be censors. There are some users on the Internet, and it may be a relatively small number, who seem to equate self‐​restraint or self‐​censorship with official governmental censorship, and they’ll post anything just for the shock value. So without a great deal of trouble, you can find on the Internet bomb recipes, suicide guides, guides to hacking everything from computers to telephone systems, child pornography — you name it, it’s probably out there somewhere. As I say, it may just be a handful of teenagers who are putting out some of the worst stuff, but they are testing the limits for everybody else, and they’re putting their material out in a place where everybody can get it.

Obscenity and pornography are especially difficult to deal with on the Internet because the law traditionally regulates them by imposing restrictions on space and time. In a community there will be an adult entertainment district, like Times Square or the Combat Zone in Boston. In a bookstore geared toward the general public, the dirty magazines will be behind the counter, or the dirty videos will be back in a different room. So there’s a sort of zoning to keep children out. In the nation as a whole the courts gauge what constitutes obscenity on the basis of community standards so that, as the Supreme Court once suggested, we don’t need to be forcing the sensibility of Times Square onto the Bible Belt and other places in the country. In the over‐​the‐​air broadcast spectrum there are rules limiting adult programming to evening hours. The purpose of all the restraints is to reduce the unintentional exposure of adults, so that adults will know what they’re going to get before they encounter it, and to reduce the possibly intentional exposure of children — to keep them from getting “adult” information no matter how much they want it.

The Internet erases all those barriers. To start with, the Internet is a faceless, global network, and it’s almost impossible to keep something out of one place if it’s accessible elsewhere on line. There was the Karla Homolka murder trial in Canada, where it was illegal to reveal information about the trial. Someone on the Internet created a newsgroup called and started posting news day by day about what was going on in the trial. The Canadian police told system operators in Canada to get rid of that group. They obliged, but it was still pretty easy to access it from Canada. Even people with just E‐​mail accounts, if they know what they’re doing, can get material from Usenet.

The result is that community standards become essentially unenforceable. On the information superhighway, unlike the gravel highway, there is no distinct red‐​light district. The red‐​light district is potentially everywhere and nowhere.

It’s also timeless. The Internet never closes; you can’t limit adult material to certain times of day. And it’s faceless. There’s no way of knowing the age, the nationality, or the gender of people sending and accessing information.

That has implications for both law and politics. First, the legal implications. I take it as a given that, for better or for worse, obscenity law isn’t going to go away. I believe that for‐​profit services that are providing on‐​line sexually oriented material are going to run into some problems. The Amateur Action bulletin board service based in Milpitas, California, is a timely example. That bulletin board had thousands of pornographic images available by modem for $99 a year. The system operators were convicted of obscenity last summer in Memphis. Their material was all right by San Francisco area standards, but it violated Memphis community standards. That raises the question of whether it’s going to be the Bible Belt, not Times Square, that forces its sensibility on the rest of the country. My sense is that the courts are not going to back down. They will simply say, you shouldn’t have let somebody from Memphis join your bulletin board if you didn’t want to be hauled into court. That was the approach the Supreme Court took a few years ago in a case about dial‐​a‐​porn. There, the court said you don’t have to establish a national standard, but you may have to tailor your messages to the sensibilities of different localities.

Distinct from a members‐​only bulletin board is the Internet itself, including Usenet, the FTP sites, and the other areas that are accessible to anybody without charge. The Usenet binary photo groups have carried some of the Amateur Action images that were judged obscene in Memphis. But it’s very tough to enforce obscenity law against the public areas of the Internet. People access the pornography without a transaction; nobody’s giving a credit card number or writing a check. There’s no easy way to find out where a viewer is based. The courts may require system operators to try to make it difficult to get material that may be illegal, but there’s no easy way to block it entirely; there’s no technological solution.

A lot of systems now have stopped carrying a Usenet newsgroup where pedophiles post images, for instance, but there are still ways to get it.

In some ways the political questions are more interesting than the legal ones, especially as the Internet moves into public schools. The effect on the public school is akin to that of having every user in the country suddenly in charge of buying books for the high school library. Not just the Carl Sagans of the world but also the porn freaks, skinheads, anarchists, racists, hackers, Holocaust deniers; all those people are now spewing information into public high school libraries. And because public high schools are giving students Internet accounts they can access from home, it has the additional effect of blindfolding the librarian, who doesn’t really know what students are doing There’s been little protest so far, and I’m not entirely sure why. When I was writing a piece for the New York Times, I called several conservative organizations that had often make a fuss about school books. None of them was on line, none of them was paying any attention to the Internet. Sooner or later they’re going to hook up and raise an enormous ruckus.

Mike Godwin: We are now dealing with the second wave of Internet publicity. Those of you who were following news coverage of the Internet noticed that there was an immense amount of publicity in 1993. Many of us predicted then that there would be a second wave of Internet publicity in which people complained about the first wave, which they said did not talk about the dark side of the Internet.

What is the dark side of the Internet? For many people the dark side is that people talk about sex there. I think it’s instructive to look at a Los Angeles Times story that appeared in July about the discovery of a cache of pornographic images on computers at Lawrence Livermore National Laboratories. The story was a hopelessly confused mish‐​mash of various computer terrors — computer crime, espionage, and criminal copyright infringement — but what led the story was the pornographic images.

That story illustrates a certain media hunger for stories about the downside of the Internet, especially when they have to do with sex. But stories about stockpiles of pornographic image files are unlikely to make people who spend a lot of time on the Net do more than yawn. Every time a new technology is developed there are people who feel the impulse to use it to communicate sexual thoughts, and there’s a tendency to say that, because it could carry sexual material, the new technology needs to be regulated. We are seeing that now in the wave of prosecutions of bulletin board systems. Back in 1990 the characteristic computer crime was computer intrusion or credit card fraud. By now we have trained the law enforcement community to respond to computer crime, and it turns out there aren’t that many computer crimes out there. What is out there is a lot of interest in sex.

And the interest in sex varies from place to place. The Amateur Action case would not have been at all unusual had it occurred entirely in Tennessee. There would have been no pornography from that bulletin board system in Tennessee had not an industrious postmaster decided to download the images from Milpitas, California.

The California bulletin board system had no clients in Tennessee other than the postmaster who, with the assistance of an assistant U.S. attorney in Memphis, set out to prosecute people in California because the kinds of images their bulletin board carried were so deeply offensive that the Tennessee postmaster and assistant U.S. attorney didn’t believe they should be available anywhere.

Before Miller v. California there was a national standard of obscenity that was pretty much arbitrated by the Supreme Court. Then Warren Burger’s majority opinion in Miller set up the analysis based on community standards with which we are now all quite familiar. The rationale, as Stephen said, was that we didn’t want to have Times Square dictating the standards for Kansas City. But cyberspace now gives the potential for having Kansas City dictate the standards for Times Square.

Chief Justice Burger was recognizing a community’s interest in preventing adult business from spoiling the neighborhood in some way. But now we have being sent out on the Internet material that can’t really spoil the neighborhood because it really isn’t there; it’s only on the computer of the person who’s receiving it.

Especially in cyberspace jurisprudence, I think Miller contradicts Stanley v. Georgia, which says that an individual has a right not to be prosecuted for having obscenity in his own home. People are increasingly living, not in geographic communities, but in virtual communities; their primary connections with other people are not grounded in the accident of geography but in voluntary associations based in cyberspace. We will have to revisit.