Minor Infraction

by Jeffrey Rosen | June 3, 2002

Opponents of the Child Online Protection Act are putting their best face on last week's Supreme Court decision to send Ashcroft v. ACLU back to a lower court for further study. The ACLU was thrilled when a Philadelphia district court, concerned that the law violated free speech, temporarily banned it in 1999. And Ann Beeson, the ACLU lawyer who argued the case before the Supreme Court, said the Court "clearly had enough doubts about this broad censorship law to leave in place the ban, which is an enormous relief to our clients."But that's too rosy a reading of the Court's fractured opinions. In fact, the five-to-four decision suggests that a majority of justices have embraced the implausible claim that underlies the Child Online Protection Act and obscenity law more generally: that there is a national consensus about which sexually explicit materials are appropriate for teenagers as well as adults. But this consensus no longer exists. The 1950s-era consensus on obscenity to which the justices are clinging has been overtaken by the reality of America's viewing habits and sexual mores. And unless the Court abandons this archaic legal framework, which allows America's most conservative communities to impose their values on the rest of the nation, it could dramatically undermine free speech on the Internet. Passed in 1998, the Child Online Protection Act (COPA) defines "material that is harmful to minors" as any communication--including pictures, writings, or recordings--that, in the eyes of "the average person, applying contemporary community standards," is designed to "appeal to ... the prurient interest"; "depicts ... in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast"; and "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." Under the law, any commercial website that posts this material must restrict access to minors under age 17 through the use of credit cards, adult access codes, or digital certificates-- or risk prison terms of up to six months and civil fines of up to $50,000 per violation. The problem is that while dial-a-porn operators and mail-order pornographers can deny their products to customers from states or localities that consider those products obscene, Web pornographers can't. To make sure customers from certain communities can't view their material, websites would have to restrict it for everyone. That's why the Philadelphia court struck down COPA, holding that it would require "any material that might be deemed harmful by the most puritan of communities in any state" to be placed behind an age-verification screen. This, the appellate court recognized, would give adults on the Web free access only to material that America's most conservative communities considered fit for children. But in his troubling opinion last week, Justice Clarence Thomas--joined by Justices William H. Rehnquist, Antonin Scalia, Sandra Day O'Connor, and Stephen Breyer-- disagreed. The five justices announced that the possibility that juries in different regions might apply community standards differently wasn't, by itself, constitutionally problematic--even if it required websites to restrict access for everyone. In separate statements, Justices O'Connor and Breyer stressed that in passing COPA, Congress intended to adopt a national standard for identifying material harmful to minors on the Internet, even though different local juries might interpret it in different ways. "A nationally uniform adult-based standard," Breyer declared, "significantly alleviates any special need for First Amendment protection," by allowing national rather than local values to prevail. As long as the nation agreed on what was harmful to minors, Breyer suggested, the material could be restricted across the board. With characteristic deference to Congress, Breyer assumed the House of Representatives and the Senate were correct when they announced that this national consensus exists. But the evidence from American viewers suggests otherwise. Consider soft-core "teasers"--free pictures from commercial pornographers--many of which are now available without adult verification and which Congress intended COPA to restrict. These are the equivalent of the soft- core girlie magazines that the Court in the 1960s said states could prohibit teenagers from buying unless they were age 18 or over. But it's hard to discern a national consensus that viewing soft-core porn is inappropriate for, or harmful to, 16-year-olds today. On mainstream television, naked breasts are no longer quarantined on late-night, public-access TV stations, as they were when I was a lad in the 1970s. Bare breasts and bottoms can be found on network shows like "NYPD Blue." Some of the most successful shows on HBO are sexual documentaries like "Real Sex," "Taxicab Confessions," and "G-String Divas," a graphic show about strippers. And millions of underage viewers are saturated with sexual images on MTV. The variety of state laws and jury verdicts on the subject of pornography also shows the absence of a national consensus. Among the 25 states that prohibit the display of material harmful to minors, some prohibit only fully exposed breasts; but a Wisconsin court recently upheld a conviction for exposing a child to a photograph of a woman with her "shirt and jacket open to the waist without exposing her nipples." Given this regional variation, the Supreme Court has long held that asking a jury to apply a national standard for "patently offensive" content outside of the TV-broadcast medium would be "an exercise in futility." At a time when our culture has never been more sexualized, it's hard to fathom why Breyer and O'Connor have now concluded otherwise. Even more troubling, COPA isn't limited to pornographic images online: It encompasses written descriptions of actual or simulated sexual acts that some juries might consider harmful to minors. It's shocking that the federal government is trying to restrict access to text on the Internet--after all, the Supreme Court hasn't allowed the banning of books since the late 1940s. And yet only Justice John Paul Stevens voted to invalidate COPA on these grounds, emphasizing that "because communities differ widely in their attitudes toward sex, particularly when minors are concerned, the Court of Appeals was correct to conclude that ... applying community standards to the Internet will restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities." But Stevens refused to follow his powerful reasoning to its logical conclusion: Namely, if there is no national consensus about what's obscene for children, there's also no national consensus about what's obscene for adults. This means that any application of federal obscenity statutes on the Web threatens to violate the First Amendment because all obscenity laws are based on the no-longer-credible assumption that people can agree on what's obscene. In his decision, however, Stevens clung to the idea that some kind of agreement about obscenity still exists. In a remarkable sentence, he wrote, "The kind of hard-core pornography involved in Hamling, which I assume would be obscene under any community's standard, does not belong on the Internet." This shows how removed even the most liberal justice is from the reality of pornography on the Internet today. The hard-core pornography involved in the Hamling case was the kind of material that might have been considered obscene in 1974--the year before Stevens, now 82, was appointed to the Court. The case involved a successful attempt to suppress a satiric collage of photographs portraying heterosexual and homosexual intercourse, sodomy, and masturbation that had been taken from a government report on obscenity. But today, as Frank Rich reported in The New York Times Magazine last May, the porn industry--much of it hard-core--generates at least $10 billion per year in revenues for more than 70,000 websites, porn networks, pay-per-view and rental movies, cable and satellite television, and magazine publishers. The 700 million porn rentals per year include, as Rich put it, "a market as diverse as America," including tattooed performers for the college-age crowd, geriatric porn for older viewers, interracial videos that are popular in the South, and outdoor sex for the Sunbelt. Indeed, two years ago, when a local video retailer in Utah was prosecuted for peddling hard-core pornography, he successfully argued that his products were consistent with what his neighbors were watching on pay-per-view. In other words, consumption patterns reveal Stevens's notion that hard core- pornography is considered patently offensive for adults, in even the most conservative communities in the United States, to be 30 years out-of-date. Unlike the Supreme Court, the porn industry has developed a rating system that classifies material with clinical precision, ranging from X (soft-core) to XX (hard-core) to XXX (ouch!). Now that XXX porn has proliferated across the country--thanks to the Web and to satellite television--the '70s effort to distinguish between the hard-core obscenity in Hamling, which could be banned for everyone, and the soft-core pornography in Playboy, which had to be protected for adults, has been doomed by the reality of the marketplace. It's no longer possible to argue that hard-core websites are patently offensive to the average American adult, or that soft-core websites are offensive to the average American teenager, since both are enthusiastic consumers. And Internet porn isn't the only area in which the Supreme Court seems caught in a time warp. On the same day it decided the COPA case, the Court upheld, by a five-to-four majority, a Los Angeles zoning ordinance that prohibited two adult businesses, such as a video arcade and a dirty bookstore, from operating in the same building. The city relied on a 1977 study purporting to establish a connection between adult businesses and higher crime. But as Justice David Hackett Souter pointed out in his dissent, there was absolutely no evidence that combining a video arcade and a bookstore under the same roof caused discernibly higher crime rates than when these partners in smut were forced to disperse. In fact, more recent--and more reliable--studies cited by the First Amendment Lawyers Association refute the claim that adult businesses are associated with higher crime at all. But even some of the liberal justices consistently refuse to evaluate the dubious empirical evidence concerning the harmful secondary effects of pornography with a critical eye. In a surprising decision two years ago, for example, Justice Breyer joined the three conservatives in upholding a Pennsylvania ban on nude dancing. In what Justice Stevens called a "titanic surrender to the implausible," the Court accepted the city's preposterous claim that requiring exotic dancers to wear pasties and a G- string might reduce the illicit "secondary effects" of nude dancing, such as violence, prostitution, and sexual harassment. The truth is that the Supreme Court's entire approach to pornography and obscenity has become a titanic surrender to the implausible. In the '60s, at the dawn of the sexual revolution, the Court struggled valiantly to preserve Victorian definitions of obscenity that relied on some kind of moral consensus about what kind of sexual depictions were beyond the pale. But in the twenty- first century, for better or worse, this moral consensus has collapsed--both at the local and the national level, for adults and teenagers alike. As a result, Congress and the Supreme Court are forced to justify their efforts to regulate porn by invoking the hypothetical possibility of secondary effects--such as harm to minors or the prevention of crime--that aren't remotely borne out by the available evidence. Many people disapprove of the explosion of porn on the Internet and understandably want to protect children from it. But in an age when community values have fractured, the law is too clumsy an instrument to regulate sexual expression on the Web. Happily, there are technological alternatives that recognize the diversity of contemporary American values while respecting privacy and free expression. As a bipartisan commission reported to Congress two years ago, increasingly sophisticated Internet filtering mechanisms allow individual parents to decide what kind of material they consider appropriate without imposing their views on others. If the Court continues to believe it can precisely calibrate American morality when it reviews COPA in the future, it may unleash a wave of federal censorship that will have little impact on the proliferation of pornography but could wreak havoc on the Internet as a raucous marketplace for free speech.

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