Pornography, an issue that was once fairly inert, has ceased to be inactive, as the argument has raged now for decades. Liberals, libertarians, and feminists have all accepted the idea that free sexual expression plays an important part in permitting a discourse that challenges traditional gender roles. The idea of liberalism that is most common in contemporary discussions is: the view that the liberal state should be neutral with regard to conceptions of the good and should neither promote nor restrict ways of life out of the belief that some are intrinsically superior or inferior to others.
At its most extreme, this conception of political authority would prohibit the state from subsidizing universities rather than pornography theaters. The issue of banning and seriously limiting the manners by which pornography is transferred through the Internet and its relevant media is one with which I am particularly familiar. Recently, (after the date of news article distributed in class), legislation was passed to stop such explicit materials from being posted overtly on the World Wide Web. Until that point, congress had been considering two distinctly different approaches to restrict kids’ access to questionable material on the Net.
The Communications Decency Act, and part of a larger telecommunications package created the idea of an Internet police force within the FCC to cruise the Infobahn in search of criminal behavior and material that violates decency statutes (the FCC has openly opposed this approach). Some of that is already being done by police agencies. I have seen news reports about the arresting of perverts who fostered on-line relationships with kids (undercover cops) and engaged in some dirty typing, sometimes even luring them out of the house to meet at a predetermined place.
But that is an extreme criminal case. The most prevalent forms of smut on the Internet are pictures and stories that are shielded by the First Amendment’s provision for freedom of speech. Just like the magazines and videos at adult bookstores, Internet pornography is legal unless challenged in court and found to be appealing to a “prurient interest” and undeserving of First Amendment protection. The sheer number of adult bookstores thriving in most communities can attest to the limited success pornography opponents have had in America’s courtrooms.
So how can we legitimately allow pornography to continue its lure on newsstands but not on private computer screens? Evidently, advocates of Internet regulation argue that the accessibility factor is completely different in this relatively new medium. We are aware that (1) censorship is counterproductive to the goals of the First Amendment but that (2) exposing minors to pornography is in violation of our obligation to protect them and the public. By allowing X-rated items to flourish on our streets and in local stores, we can see who is buying them.
Shop owners have the responsibility of stopping a youth from purchasing a “dirty” magazine but also the Constitutional right to display such items for sale to adults. Until recently, providers of pornography had no way to know who was looking at their material–just typing in that someone is over 21 years of age (or 18)–certainly is not proof enough. What the new laws seek to do, according to advocates, is not to ban pornography from the Internet; but instead to regulate it in the same fashion stores do: Make it available only to customers with credit cards.
Proof of age is now better enforced. Opponents claim that kids will now just be motivated to use fraudulent or stolen credit card numbers to view pornography from their PCs. Advocates argue back that they will not do so in any greater number than kids who steal pornography from newsstands, or convince others to purchase it for them. But then rings back the Constitutional argument: Most pornography was free on the World Wide Web; publishers were exercising First Amendment Rights, by requiring payment, the problem is not solved: Instead, genuine censorship is instituted.
Pornography designers are told that they have to charge money or at least go through the often-costly process of maintaining equipment and clearing credit cards. Our responsibility to protecting Constitutional Rights comes first and in this case, they may very well be violated. An interesting point to be made is that laws on pornography end at our nation’s shores. There is no recourse for objectionable material on the Internet that originates overseas. And the potential language barrier is of little consequence to a young American boy staring at a compromising photo of a geisha girl.
Some might argue that same boy could see it if he went to China anyway. Of course, the counter argument would emphasize that significant difference between traveling to China in “real life” and traveling there in cyber-space. Should the government censor our access to Internet material outside of this country? In doing so, a violation of our fundamental rights certainly would exist. Advocates of the legislation assert that we can’t just give up on protecting our children because other countries want to hurt them with pornographic images…
There are two reasons to wonder whether existing laws can govern cyberspace adequately: First, as the debate about pornography reveals, the Internet throws up the jurisdictional problems just mentioned. It is seamlessly global; whether a place on it is physically located in Atlanta or Amsterdam matters little to a “cyber nut,” who can “visit” either with just the click of a computer’s “mouse. ” What is legal in Amsterdam may not be legal in Atlanta. What is moral, ethical, and Constitutional in the United States may not be moral in Saudi Arabia.
The offensive citizen who sees the Net as a way to evade the moral rules of a prudish government (or, awkwardly, the dissident seeking to evade censorship by a dictator) could hardly hope for a more convenient way of doing so. But just because the Internet is so ungovernable and so borderless-does anyone group have the right to enforce strict codes and rules that are superiorly prudish compared to those of traditional society and in contradiction with our fundamental rights as U. S. citizens? Absolutely not. When dealing with the Internet, we are dealing with the world.
And in all reality, there is very little in this world that is universally deemed to be immoral or unethical besides perhaps malicious theft and murder/slaughter. Neither of those two moral and legal crimes is genuinely possible over the Internet anyway. The same rules of common courtesy and respect for another’s culture that exist in the “real world” must be honored over the Internet as well. In the United States, it is illegal to exchange child pornography and several other extreme sorts, so it should therefore be unethical and illegal to do so over the Internet.
But if Playboy pictures or naked women and Playgirl pictures of naked men are examples of free speech in our country, then again–we must accept them over the Internet. Both redundantly and conclusively, I assert that the real issue we must decide (and probably never will) is whether or not pornography itself is unconstitutional. And indeed, it is not. First Amendment protects it. Consequently, those same rights within the borders of this country should protect the Internet… It is for all of these reasons that simply banning the “transmission” of indecent material is such a bad idea.
By treating as identical widely different classes of information and exchange, it encroaches too far on freedom. Private communication between adults is almost always a matter for them alone and a protected one. In broadcasting, in contrast, there is a risk to the innocent bystander (your 12-year-old daughter, let us say, cruises the Net to find out why dinosaurs died out and stumbles instead across some horrifying sexual perversion). The Internet contains all these forms of communication, plus many in between. Laws that failed to discriminate between them would at best be unworkable, at worst a severe encroachment on our civil liberties.
The electronic Penthouse, for example, lists the countries where its content would be forbidden, and asks visitors from those countries not to look. Playboy “warns” electronic visitors that naked women are ahead. The on-line industry should perhaps enlarge such ideas, for example by making it easier for parents to control what children do on-line. The film and videogame industries already subject themselves to a ratings system. Commercial services, such as Prodigy and America Online, specifically define services that children are not supposed to enter without parental approval.
This is hardly a cure-all; since most parents need computer-literate offspring to guide them to the Internet, many children will circumvent such prohibitions. But it offers the same protections we have off of the Internet without violating our Constitutional rights. As I wrote, these children can probably get their hands on a “dirty” magazine anyway. Conclusively, in many other ways, cyberspace is a microcosm of the ordinary world, with all the same mingled potential for good or bad. It cannot, and should not, be wished away by over-hasty legislation with no firm Constitutional standpoint.