Pornography and freedom of speech

By Brian Pierce

If the comments left by readers on The Daily Illini Web site are any indication, my arguments on this page have at times left a few people unconvinced. Nevertheless, I like to think that there is at least somebody out there whom I have persuaded by something I have written. And even on occasion I can concede that somebody out there has changed my mind with an argument I had never encountered before.

The reason this works out pretty well, and the reason why it creates such a beautiful system of truth-finding is that nobody in the equation holds any legitimate claim over the use of force.

That qualification, of course, does not apply to the federal government, which is why the framers of the Constitution thought it proper to include a free speech protection in the Bill of Rights.

That protection saw another in a long line of victories last Thursday when U.S. District Judge Lowell Reed, Jr. struck down the Child Online Protection Act (COPA) passed by Congress in 1998. COPA made it a crime for commercial Web site operators to let children access material deemed “harmful to minors” by “contemporary community standards.”

Sexual health sites and the online magazine teamed with the American Civil Liberties Union to file a lawsuit challenging the law as being unconstitutionally vague. Reed sided with the ACLU, noting that because the more narrowly tailored option of filtering software exists, COPA was too broad and would create a chilling effect on speech.

The government had argued that filtering software is ineffective because, as a government attorney wrote in a post-trial brief, “It is not reasonable for the government to expect all parents to shoulder the burden to cut off every possible source of adult content for their children, rather than the government’s addressing the problem at its source.”

Setting aside the government’s hypocrisy while defending filtering software in a previous Supreme Court case involving public schools and libraries, it is interesting to take note of what conservatives believe people should and should not take personal responsibility for. Maintaining constant employment that will provide oneself and one’s family with adequate health care, a quality education and retirement security? No problem, unless you’re lazy. But making sure one’s children aren’t looking at dirty Web sites? Government to the rescue!

But the bigger problem here is that enacting a law that is enforced as a function of “contemporary community standards” is an underhanded way of making sure those community standards will remain the status quo. Standards won’t change unless there is some voice driving them forward, but those voices will be silenced if they are made to fear the power of the state.

And while you might not mind that the status quo remains the same with regards to child access to pornography, the language was too vague to apply solely to pornography. In any case, many (myself included) would argue that while we might not want children watching hot uncensored XXX action, our society’s secretive, shame-inducing and overly protective attitude toward sex does need to be adjusted. That adjustment cannot happen when Web sites designed to openly discuss sexual health or other sexual issues must either counterproductively limit access to such a discussion or suffer criminal penalties (in this case, a $50,000 fine and up to six months in prison).

Last week’s court decision was a small but important victory, but we should expect either an appeal to the Supreme Court or a Congressional rewriting of the law (which itself was rewritten after the Supreme Court struck down another 1996 law which attempted to ban online pornography altogether). Both scenarios require our attention and our vigilance.

If parents are to take responsibility for anything, it is the values they instill in their children.

That cannot be done in a free way or in a progressive way with laws like COPA on the books. And while not everybody will care about the progressive part, every American should care about the free part.