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Monday, June 23, 2003

Child Pawn

by Clinton Fein

Click to Send PostcardToday, a divided Supreme Court ruled that Congress can force the nation's public libraries to equip computers with anti-pornography filters.

The fundamentally flawed blocking technology, intended to keep smut from children, does not violate the First Amendment even though it shuts off some legitimate, if not critically and life-saving importantly informational Web sites, such as how to practice safe sex, the court held.

Despite the sharply divided ruling, and the name of the statute -- Children’s Internet Protection Act (CIPA) -- the biggest losers in today’s decision were young people intelligent enough to make informed decisions, but too young to enjoy the freedoms available to adults under the First Amendment.

The biggest problem with the decision is that there is no legal definition of pornography, even though the language in the decision refers to obscene or pornographic images or material harmful to minors. Indeed, child pornography is legally defined insofar as there is a specific age element to which the label is applied, but pornography, no.

In January 1997, ApolloMedia, parent of Annoy.com, filed a lawsuit against then Attorney General Janet Reno, challenging the constitutionality of a provision of the Communications decency Act which made it a felony to transmit over the Internet anything "indecent" with an "intent to annoy".

The case made its way to the same Supreme Court that issued today’s ruling, who in effect affirmed a Ninth Circuit decision that upheld the provision in a tortured interpretation it issued on April 19, 2000 that found the string of words, "indecent, " "lewd, " "lascivious, " "filthy" and "obscene" all only applied to "obscene" communications, which are not protected by the First Amendment.

The government and court's definition of obscene, the media coverage of the content on Annoy.com, and the conventional understanding of these words demonstrate that there is very little difference among their meanings and definitions. The New York Times, for instance, referred to an image on Annoy.com of a hand extending a middle finger as a vulgar gesture. Much of the headlining of articles referred to Annoy.com as smut and pornography.

Indeed, the Ninth Circuit did acknowledge that common usage of the words have different shades of meaning, but that the statute has always been taken as aimed at obnoxiously debasing portrayals of sex. Obnoxiously debasing portrayals of sex are only obnoxious insofar as they are offensive or punishable, and in my opinion, the notion of administering punishment for the mere portrayal or depiction of sexuality is more debasing in nature than the simple expression of it.

The government further indicated that the Supreme Court has held that this string of words ending in "indecent" simply means "obscene" for the last forty years. Forty years ago, society's standards were significantly different to what they are today, and more importantly, we were not capable of communicating with such ease on a global scale with such a vast array of different languages, cultures, religions and societies. To be bound by constructs of forty year-old interpretations, governing a different medium is outrageous. It is equivalent to the FDA simply applying the guidelines governing the intake of barbiturates to new drugs like Viagra or Prozac, even though they are entirely different drugs made of different compounds and capable of producing completely different side effects. Despite this, Chief Justice Rehnquist stated the High Court had "rejected the view that traditional public forum status extends beyond its historic confines…The doctrines surrounding traditional public forums may not be extended to situations where such history is lacking. "

In 1973, the Supreme Court attempted to define obscenity in Miller v. California, by establishing a three-part test for obscenity: "hard core" sexual material that appeals to the prurient interest; is patently offensive under community standards; and lacks serious literary or other value. Each of the three parts of the Miller test must be met to criminalize even obscene speech. Naturally, nothing on Annoy.com can ever be considered obscene under these definitions, since the entire exercise is based on serious literary or other value. After all, ApolloMedia v. Reno is studied, among other places, at Harvard Law School.

Miller was decided two decades before the Internet emerged. Now, some thirty years later, the government is still referring to Miller as the defining principle, despite the fact that the three-part test requires that community standards be applied to determine what is offensive. The major flaw with applying Miller to the Internet is that the community on the Internet is a global one, making it impossible to even define the make up of the community, let alone apply standards to it.

Several members of the Supreme Court have expressed their dissatisfaction with the Miller test application to obscenity. And of course, the world authority on artistic merit and foreign relations, Senator Jesse Helms declared in the Congressional Record that written "safe sex" educational materials were "obscene." Thus a seductive courting dance of a native African tribe, performed purely for the prurient interest, and regarded as a fundamentally accepted cultural ritual, for instance, might be regarded as not only obscene, but blasphemous by Senator Rick Santorum in Pennsylvania.

Even if we were to attempt, with strong imagination, to apply Miller to a different medium like the Internet, it would be impossible to determine what is and is not permissible by virtue of the fact that there are inadequate laws or guidelines regarding the jurisdictional governance of Internet communications. What may be permissible according to community standards in San Francisco, California may be impermissible in San Diego, California, let alone Tulsa, Oklahoma.

Chief Justice Rehnquist’s reasoning that "no clearly superior or better fitting alternative to Internet software filters has been presented," is frightening given how rudimentary and flawed filtering technology remains. His cavalier dismissal of children, an afterthought in parentheses, to assert a patron encountering a blocked site "need only ask a librarian to unblock it or (at least in the case of adults) disable the filter," speaks volumes. And while the statute allows libraries to permit any adult patron access to an "overblocked" web site or to disable the software filter entirely upon request, the extent to which children will be harmed –- and not just speech-related harm -- by their inability to access an "overblocked" site is completely overlooked, not to mention counter-productive given the statue’s supposed legitimate objectives, rather than its political and moral ones.

If a teenager seeking information about avoiding sexually transmitted diseases or avoiding pregnancy is not a legitimate reason to allow unfiltered access to Internet materials, it cannot be said that the statute represents legitimate objectives claiming to protect children. And even if the court had even bothered to address children’s access in a meaningful manner, Rehnquist observed wryly that "the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment." A surefire way to encourage children seeking information that would be too embarrassing to ask of adults! Justice Souter, who dissented, argued that if the only First Amendment issues raised were those of children he would have no problem upholding the application of the Act, stating, "I do not think that the awkwardness a child might feel on asking for an unblocked terminal is any such burden as to affect constitutionality." Once again, it is difficult to take the stated objective of protecting the interests of children seriously.

Despite arguments that CIPA does not "penalize" libraries that choose not to install filtering software, or deny them the right to provide their patrons with unfiltered Internet access, but rather "reflects Congress’ decision not to subsidize their doing so," Rehnquist’s reasoning completely ignores the point addressed by Justice Stevens, namely that "the interest of the authors of those works in reaching the widest possible audience would be abridged," which strikes at the heart of the censorship issue, in essence placing a prior restraint of sorts on sites like Annoy.com which contains nothing that could be considered "harmful to minors," anymore than a perusal of the documents associated with the impeachment of former President Bill Clinton would be.

Justice Stevens states further that "unless we assume that the statute is a mere symbolic gesture, we must conclude that it will create a significant prior restraint on adult access to protected speech. A law that prohibits reading without official consent, like a law that prohibits speaking without consent, ‘constitutes a dramatic departure from our national heritage and constitutional tradition.’"

If I was to ask you to "choose a side" in Afrikaans, the language of a small minority of white South Africans, the translation would be "kies ‘n kant" pronounced "kiss a cunt." Will the audio transmission of anything in Afrikaans be filtered from public libraries? What about an educational overview of Bangkok? Most analysis in the courts and in the media to date has failed to take into account that the Internet is a multilingual, multimedia communications instrument. Filtering devices cannot interpret untagged or mistagged visual images with any degree of consistency, any more than optical character recognition technology can interpret audio, or contextualize language.

Miller also stipulates that obscenity is established if "the work, taken as a whole appeals to the prurient interest" and "depicts in a patently offensive way, sexual conduct, excretory functions, and lewd exhibitions of the genitals." Why is an image word, depiction or expression of anything that is appealing to the prurient interest obscene? Could one not, as a whole, find the nude statue of Michelangelo’s David pruriently appealing? Or the exposed breast of Virgin Mary? Upon what vague notions are these based other than on some specific religious principles, which in themselves should be separated from the law. (Prurient of course, having the same "shades of meaning" that make it difficult to determine what might be "harmful" and therefore easier simply to filter than risk losing funding).

Further, how would an image or description of a person engaged in sexual or excretory functions appeal, necessarily, to the prurient interest. Most humans, at some point or another, even as children, touch their genitals and excrete waste. Why does congress, in the supposed interests of children, find it impermissible to depict sexual or excretory activity -- the most natural, fundamental and base activities of most species -- yet condone the display, depiction and transmission of the most hideous, reprehensible, sick, nauseating, ugly, revolting, and patently offensive depictions of violence, brutality, degradation and bloodshed?

The same congress that sends children off to war deems it a threat to society for children to see other humans engaged in pleasurable acts, making love or ridding their bodies of toxins. Yet splattered brains from a bullet to the head, or the impact of a Tomahawk missile on a pregnant mother -- violent responses that teach children to approach life’s problems by harming, hurting and destroying one another -- is acceptable and contributes to our spiritual growth and evolution as a civilized and more enlightened species? And will it -- in the unlikely event that people uncontrollably orgasm every time they’re exposed to a sexual or excretory depiction, image or sound -- necessarily represent a threat to civilization as we know it.

Once again, the High Court has failed. It offers no guidelines and the definitions it applies remain unconstitutionally vague and inadequate as a standard, particularly one by which to approach a modern and unique medium. Especially one characterized not only by words and images, but also by audio, interactivity and imagination.

The underpinnings of this decision are based primarily on Judeo-Christian constructs governing sexuality and morality, and serve no useful or legitimate purpose in protecting anyone from anything. Unfortunately this decision will do as much to protect children as distributing condoms with holes in them.

Clinton Fein can be reached at clinton@annoy.com


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