Indecency and obscenity are in the news again. Of course, it'sdifficult to recall a time when they weren't in the public eye,both literally and figuratively. America's love-hate relationshipwith pornography ranks as one of great paradoxes of this country'shistory. While a deep puritanical streak runs throughout America'shistory and culture, it is equally clear that Americans possess aseemingly insatiable appetite for materials of a prurientnature.
Nowhere is this more evident than in cyberspace. Despite themany informative Web sites, interactive tools, and unique businessservices that are available online, the adult entertainmentindustry is the only consistently profitable commercial sector onthe Net today. And that isn't happening because a handful ofperverts with big bucks are keeping all these "XXX" sites afloat.It is a mass market phenomenon, with tens of millions of Americanssurfing the Net for adult-oriented fare.
But while the phenomenon makes for interesting discussion incollege sociology classes, the real question is: What, if anything,should public policymakers be doing about it? Legislators andregulators are always engaging in political grandstanding anddemagoguery on the issue, claiming that they "need to clean up TVand the Internet," usually "for the sake of our children."Rhetorical sermonizing is one thing, but regulatory activism isquite another. And if the recent words and actions of certainconservative groups and Bush administration officials are anyindication, the pro-censorship forces appear to be readying a newpush to police pornography and regulate obscenity. For example:
- Patrick Trueman, director of government affairs for theAmerican Family Association, has called for the prosecution ofYahoo!'s corporate leaders since he feels the world's most popularInternet portal is providing obscene materials on its site. On theAFA's Web site, Trueman says, "This is something either the JusticeDepartment will handle, or we will continue to up the ante with theJustice Department, providing them inescapable proof Yahoo! istrafficking in illegal material. So we're going to keep at thisuntil there is a prosecution, or at least an investigation ofYahoo!"
- Wired News recently reported that the AFA, along with 12 otherpro-family groups and two Republican members of Congress, Reps.Steve Largent (R-Okla.) and Christopher H. Smith (R-N.J.), met withAttorney General John Ashcroft in late May to encourage theDepartment of Justice to step up obscenity prosecutions. They wereapparently seeking to hold the administration to promises PresidentBush made while campaigning for office that he would vigorouslyenforce obscenity laws.
- One of the individuals involved in the Ashcroft meeting, BruceTaylor, president of the National Law Center for Children andFamilies, told The Industry Standard before the meeting, "If I wasa prosecutor, I'd be like a kid in a candy store," when referringto the prosecution opportunities he feels are available to thecurrent administration.
- After the May meeting with the coalition of pro-censorshipgroups, Attorney General Ashcroft testified before the HouseJudiciary Committee in early June and declared that the JusticeDepartment would be increasing its efforts to assist stateofficials bent on imprisoning the operators of sex sites thatfeature obscene images. "We try to be especially accommodating tolocal law enforcement to assist [state officials], and I wouldthink that would be an objective of ours in this respect," saidAshcroft.
- Meanwhile, in early April, the Federal CommunicationsCommission issued a bizarre set of policy guidelines outlining whatqualifies as "indecent" speech on radio or television. The casecomparisons used in the FCC policy statement are so vague andoftentimes contradictory that it led noted First Amendment attorneyRobert Corn-Revere, a partner at the Washington law firm of Hogan& Hartson, to note that "the FCC's broadcast-indecency standardremains today just what it was before the commission issued itsguidance to the broadcast industry: clear as mud." The FCC has alsoissued a number of high-profile fines in recent months for supposedindecent radio broadcasts.
In sum, it appears that a renewed censorship effort is underwayby many religious activists and conservative leaders, aimed atgetting the Bush Administration to take up the pro-censorshipcrusade on their behalf. These efforts seem a bit ironic, however,given that conservatives are fond of talking about "parentalresponsibility" but seem to want to pass the buck to Big Governmentwhen it comes to controlling their children's viewing or listeninghabits. Some conservatives argue that the Internet is just such anintrusive technology, and is so readily accessible to children ofall ages, that legislators must step in and help shield children'seyes from potentially offensive materials. Of course, in yearspast, they've said much the same thing about television, radio,cable TV, and even comic books, so in one sense, their tune hasn'tchanged all that much.
Moreover, how intrusive is the Internet in reality? After all,parents must first purchase a computer, obtain an Internet accessprovider, set the system up, log on, and take a host of other stepsbefore the Net is available to their children. If parents havetaken such steps to bring this technology into the home, theyshould not then expect regulators to assume the remainder of theirparental obligations once the kids get online.
Conservatives are also fond of making the argument that onlypolitical speech deserves strict First Amendment protection whileother forms of speech and expression do not. As the Family ResearchCouncil Web site flatly states, "Free speech has nothing to do withpornography or nude dancing or cuss words. That stuff has theserious potential to stir up bad things." Not exactly profoundlegal logic, but their point is nonetheless clear: policymakersshould feel free to censor any forms of nonpolitical expression,especially those of a sexual nature. But this argument has alwaysbeen based on a false distinction and shaky legal logic. All formsof speech and expression are important and deserving of protectionby the First Amendment unless the rights of an individual areviolated in the process.
Which leads to a final point about conservatives who favorcensorship: they often group all sexually related activities andWeb sites together in an attempt to craft blanket prohibitions.This is not good public policy. Most adult entertainment Web sitesallow consenting adults to enjoy sexually related materials withoutengaging in behavior that poses harm to others. Onlinecyber-stalking or sites that traffic child pornography aredifferent; rights are violated in these cases, and legal sanctionsare appropriate.
In the name of "protecting children," policymakers oftentimesend up treating us all like juveniles. The conservative groups andpolitical leaders that are encouraging this renewed censorshipcrusade need to start taking their own first principles of personalresponsibility and parental decision-making more seriously.