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XXX!!: Sex and Free Speech
For years, it's been impossible to conduct anything like a rational public -policy discussion about the dissemination of sexual information in the United States, a country which constantly proclaims itself the cradle of liberty while being censorious, prudish and hypocritical when it comes to sex.
Sex, in fact, is our national taboo, and the Internet has taken this national phobia to meltdown levels.
America Online loves to position itself as the Main Street of the Internet, but company officials have never been willing to discuss how much of its revenue comes from sex-related chat rooms (in l996, Rolling Stone Magazine "conservatively" estimated AOL's monthly sex chat take at $7 million). If you want to take a guess, just type in a few keywords and consider your options.
That's not a bad thing. Politicians and journalists like to call all sexuality "pornography"or "smut," but services like AOL have permitted the open discussion of sexual issues, preferences and orientations for the first time in American history, even if they'd rather not brag about it. Hapless Americans no longer have to risk arrest or humiliation by hanging around peep shows or porn parlors. They can go online.
This has sent our many moral guardians into hyper-drive, invoking the safety of children as an excuse to beat back the sexual revolution made possible by the digital one.
And it's brought entrenched notions of free speech directly into conflict with emerging sexuality, and the dramatic increase in the availability of sexual imagery. Talk about the unintended consequences of technology.
There's no question sexual predators exist, online and off. Or that the Net has given them a powerful new venue in which to operate. But sex crimes against children are rare online, or as the result of going online. Law enforcement officials, perhaps seeking to expand their jurisdictions and bureaucracies, are continuously sounding alarms about online predators. But federal agencies like the FBI, the National Center for Missing and Exploited Children, and private researchers like author Don Tapscott report that children are many times more likely to be abused by someone they know at home than as the result of sexual encounters online.
Surprisingly, there are no broadly agreed -upon estimates of how many children are victimized by online predators. There appear to be few, especially when considered in proportion to online use. In preparing a book about children and online safety and culture several years ago, several researchers and I were able to project that kids were much more likely to have an airplane fall out of the sky onto their heads than to be harmed as a result of going online.
Estimates range from a handful to a few hundred each year, and the great bulk of those involve older adolescents and teenagers drawn into obsessive or unhealthy relationships.
But it's striking, in the hysteria over kids and sexual imagery online, that there is no reliable data about the number of victims.
This doesn't slow down the media, which continuously sensationalizes the rare instances in which children are lured into real-world encounters by criminals operating online, and panics parents and educators into seeing the dangers as much greater than anyone has proven them to be.
Both journalists and politicians not only confuse sexual imagery with pornography, they also equate any exposure to sexual imagery with danger. This makes anything like a sane public policy discussion of sexuality and the Net impossible, either in Congress, at local school boards or private homes.
Schools, libraries and parents, caught in the middle of this confusing debate, have increasingly washed their hands of this explosive issue, and turned to blocking and filtering programs as a response. Politicians have weight in with blatantly unconstitutional responses like the Communications Decency Acts or equally unconstitutional and unenforceable state statutes like one overturned this week in California.
Monday, Contra Costa Superior Court Judge John Minney declared unconstitutional a penal code section that made it illegal to send sexual material over the Internet if the sender knew the recipient was a minor. Constitutional lawyers called this ruling reasonable and necessary -- as did a staff attorney for the Electronic Frontier Foundation -- since the First Amendment protects the right of citizens to distribute sexually explicit material.
In this case, a former middle school teacher was arrested in April after he was caught allegedly attempting to seduce a 14-year-old boy by chatting online and sending explicit photographs. The "victim" was actually a police officer posing as a minor, the latest in a series of cases in which undercover officers "police the Net" by seeking to snare adults who approach children in sexually explicit ways. Predators who seek to assault children or exploit their bodies commercially are already law-breakers, subject to numerous statutes in local, state and federal law.
The Judge ruled that the law prosecutors relied on was simply too vague to be constitutional, and that free speech needed to be protected as well as children's safety. In fact, judges have repeatedly ruled that "decency" acts and statutes prohibit all discussion of certain kids of subjects are against the law.
Critics of the ruling argued that this wasn't a free speech issue, merely an encouragement to pedophiles. But like it or not, restrictions on discussion of sexuality does relate to freedom of speech.
The Contra Costa ruling is a reminder that this is yet another technological issue in urgent need of some coherent discussion, as opposed to the posturing and sensationalizing.
Freedom on the Net is not only constitutionally protected, it is also, by technological evolution and practice, a free culture that almost defies policing. There aren't enough cops on the earth to patrol AOL's chat rooms, let along mailing lists, websites, and global messaging and chat arenas all over the world.
Without question, kids do need to be educated in online safety. The rules are almost shockingly simple: give nobody your phone, numbers, full name or address. Small children ought not be left alone with the Net any more than they're allowed to wander around the mall by themselves.
Instead of banning games and filtering sexual imagery, teachers and parents need to show small children how to be safe online, how to respond to the violent or sexual imagery they may encounter, how to find sites that educational, entertaining and safe.
Is all exposure to sexual imagery dangerous to all kids at all ages? Is some exposure to sexual imagery and discussion safe, even healthy? This society has never figured such questions out, or even addressed them in any sustained way. The explosive growth of the Net practically forces an unconscious civilization to come to terms with reality.
In an era when the Net instantly connects people to all of the archived information in the world, how can reasonable laws be written that protect both children and free speech on the Net? How, for example, are adults interested in sexuality supposed to know the ages of the people they're speaking with in chat rooms? Is discussing sexuality with a teenager a crime? Or does the adult have to harm or intend to harm a minor in some demonstrable way?
From shock radio to cable to movies, magazines and Net chat rooms, American children are growing up with more exposure to sophisticated sexual and other kinds of imagery than any generation that has preceded them.
Is this harming them, and if so, in precisely what kind of ways? If this culture is so dangerous, why is the crime rate among kids dropping so sharply?
America is one of the world's most sexually obsessed and repressed nations, one reason sex sites are among the most visited on the Net, after business, entertainment and sports. Obviously, the sexual interests of U.S. citizens conflict with the puritanical impulses of their elected leaders and religious and moral guides.
Yet like it or not, the Net is breaking down these and other ingrained taboos. The Net has killed off sexual censorship as effectively as it has killed off many other kinds, though many of the country's most powerful institutions are slow to grasp the implications.
The very notion of pornography is a relatively new concept in human history. It came about in Victorian England when researchers from the British Museum dug up the ruins of Pompeii and were stunned to find artworks of all kinds - carvings, vases, paintings - in the ancient Italian city that featured shockingly explicit sexual activity, from oral sex to bestiality. The researchers were amazed to learn that these drawings were displayed all over the homes of Pompeii.
The British decided that women and children were too vulnerable and wanton to see these things, and hid them away in the museum's basement for generations. The idea that sexual imagery is dangerous was born, and soon took root in puritan-settled America.
These ideas need some re-consideration in the Digital Age. Vague laws about decency aren't holding up to the scrutiny of the courts, so children who need education and protection aren't getting any, while the Net-spawned right of access to sexual material for citizens who want it is directly threatened.
If even a fraction of the hysteria about kids, sexuality and the online culture were true, there would be no ambiguity about the dangers to children. There would be clear statistical support for the ongoing hysteria. There isn't.
With the 21st century come some inescapable new realities about freedom and sex. Freedom isn't going to vanish online. Sex is never going back into the closet. And thanks mostly to the federal judiciary rather than legislators sworn to uphold and protect the Constitution, the First Amendment isn't going to be disassembled every time an intractable social challenge involving free speech crops up. If the judges don't see to that, the Internet will.
The biggest issue relating to sex and free speech is out how the two impulses can co-exist with one another in a country that doesn't seem sure if it wants either.
Katz claims that politicians are prudish, don't like sex, fear sex, consider sex immoral, whatever. I disagree: history has shown that politicians are some of the most sexually active people on the planet. The peccadillos of politicians are the stuff of legend.
The real issue here is that politicians take a sampling of social mores and exploit those mores as a way to stay elected. Most politicians don't give a damn about pornography on the internet -- unless they feel it'll get them elected. It has nothing to do with morality or prudishness, it has _everything_ to do with the accumulation of power.
Politicians will exploit the "sex card" in order to whip up hysteria and get themselves elected. They will exploit the "fear of terrorism card" in order to whip up hysteria, get themselves elected, and whittle away at our rights in order to increase the strength of their position.
None of this is particularly new.
What I absolutely DISAGREE with, however, is Katz' assertion that someone who speaks out against "pornography" is somehow diluting free speech. Free speech is free if and only if BOTH sides of the issue are heard.
In other words, if you only hear speech about how good sex is, how wonderful pornography is, how liberating it is, THAT IS NOT FREE SPEECH. If you only hear speech about how terrible sex is, how horrible pornography is, how exploitative it is, THAT IS NOT FREE SPEECH EITHER. Katz is confusing his particular moral stance (sexuality on the net is liberating) with free speech (which is an open exchange of ALL ideas, be they right or wrong).
I would hope Mr. Katz would use a bit more caution in the future. He has a tendency to paint everyone on the other side of his fence as reactionary idiots. Certainly many of them are, but such strong language tends to discourage a reasoned response from opponents -- thus discouraging free speech.
Eviscerati.Org: All Hail the Eviscerati
The United States loves to see itself as the cradle of liberty, but when it comes to sex, America mostly demonstrates its prudishness and hypocrisy. Sex is our national taboo.
Actually, the United States runs about in the middle of the world when it comes to sexual prudishness. Of course when we discuss sexual openness, we tend to look towards Italy (where just about every sexual fetish has it's own magazine at the local corner), and away from Saudi Arabia, where we find their "repression of women" less a sexual issue and more a human rights issue. Of course if Italy were to interpret our dress codes in the same way we interpret Islamic dress codes, they'd blame us for human rights violations because we don't allow our women to run topless on the beach instead of just calling us sexually repressed.
This has sent our many moral guardians into hyper-drive, invoking the safety of children as an excuse to beat back the sexual revolution made possible by the digital one.
Do you know why prostitution is illegal in most jurisdictions in the United States? It wasn't always that way, you know.
But back at the turn of the last century, a bunch of articles appeared which talked about the evils of "white slavery." The concern back then was that white women were being abducted and transported across the nation or across the world to serve as sexual slaves in brothels, and prostitution simply fed the world's hunger for white slave women. This of course appeared in the British press, and was picked up by other English-speaking nations rather quickly. So the drive to eliminate prostitution in order to save "our fair damsels" caused most of the english-speaking world to outlaw prostitution.
Nowadays we don't cry "in the name of our fair women and children", as since WWII, the women's movement has woken us up to the realization that women are not sexual toys and wives, but men's equals. So we now have turned towards "protecting the children" instead.
But this is old political hat, and anyone with any sense of history would know that we've been using "saving our children" as an excuse to pass legislation since before Romulus and Remus founded a nation amongst seven hills in central Italy.
But federal agencies like the FBI, the National Center for Missing and Exploited Children, and private researchers like author Don Tapscott report that children are many times more likely to be abused by someone they know at home than as the result of sexual encounters online.
And this is news how?
I'm sorry, but the downfall of any democracy is that we tend to have lopsided enforcement of the laws depending on the "public outrage du joir." There is a history of this going back since pretty much the start of democracy. It's not supprising that there is lopsided enforcment against "on-line child pornography" to the point where laws have been passed (and since rejected) that outlaw photographs of young women who appear to be under 18 years of age. As soon as the outrage against child pornography on the net passes in another 5 years or so, we'll move on to something else, and the true child pedaphiles (all five of them) will be safe to troll AOL again.
But it's striking, in the hysteria over kids and sexual imagery online, that there is no reliable data about the number of victims.
Which is very common in this era of "hype-induced legislation." Very old news to anyone who follows this sort of stuff. What is more troubling is the fact that when data does arrive, it's ignored in favor of the public hype.
For example, there is very reliable data that shows that "three strikes" doesn't work. First, it causes criminals who find themselves on their third strike to "raise the stakes", so to speak, when it comes to their defense on the third strike. (As "three strikes" gives them little recourse but to go to jail for life, they have nothing to lose in putting on the most expensive defense they can.) This contributes to an already overburdened court system. Couple this with the fact that a lot of third strikes are going towards folks who do as little as steal a slice of pizza, and you have a law which Just Doesn't Work.
But with this data, does anyone do jack to solve the problem? No; "three strikes" is a very popular piece of legislation, even if it doesn't work.
I fear the same thing will happen with on-line pornography--no matter what sorts of evidence people discover about on-line sexual discussions and forums, it will be ignored in the name of "if we can just save one child, it will be worth it." (Ignoring of course that "it" == trashing the first amendment.)
The very notion of pornography is a relatively new concept in human history. It came about in Victorian England when researchers from the British Museum dug up the ruins of Pompeii and were stunned to find artworks of all kinds...
Not even close. But thank you for playing.
Turns out anyone who has even bothered to spend a half-hour taking a lecture tour of their local museum knows better than this.
For example, ever wonder why there were so many nude Christs and nude angels being painted in the 14th and 15th century? Because it was a way to get around the church's edict forbidding pornography. By disguising these images as religious paintings, 15th century artists were able to get away with painting what was otherwise forbidden subjects. British Victorian prudishness was only interesting in that the British managed to invent a reason for prudishness which did not involve the Roman Catholic Church.
The biggest issue relating to sex and free speech is out how the two impulses can co-exist with one another in a country that doesn't seem sure if it wants either.
The best way to resolve these issues is an educated public who gets involved with the political process. Unfortunately, I rarely find either of these two qualities within a country mile of eachother.
And I find little evidence here of either as well.
Frankly I could go on for another 100K on the problems, nits and other serious problems with this little essay which negate both the thesis and the conclusions as nothing more than popular reactionism to popularized tripe, but what's the point? I'll just say that (a) it ain't just "us prudish Americans", (b) that pornography was not a "British Victorian invention", that (c) hype about saving our children is not just restricted to the 'net or to pornography, that (d) the 'net didn't invent the downfall of sexual prudishness but only placed a spotlight on an issue that is at least a century old, and (e) it ain't going to be solved by empty little position pieces which can't be bothered to research the issues involved.
What's the real issue here? Sex? Free speech? Or the fact that far too many parents want the government to do the job of parenting for them?
Security through obscurity doesn't work in the tech world, and it sure as hell doesn't work in parenting. Yet it's the most popular mode of operation for many parents: try to hide the existence of sex from the kids, while at the same time put off figuring out how to explain it to the kids when the time comes. And just like in the tech world, when the obscurity is dispelled, there's as often as not no real "security plan" left. In the case of parents, what often happens is the kid comes home and wants to know something about sex; the parents haven't planned The Talk out, and hem and haw uncomfortably. Kid decides to do some independent research, the parents find out, and they start screaming about the filth polluting America's youth. Government hears the screams and decides to do something about it. But where was the real point of failure here?
Many kids want to listen to their parents. But for the parents to fill that role, they have to open their eyes and realise that simply hiding uncomfortable truths (and the way a lot of people are brought up, things like sex are uncomfortable truths) isn't the way to go. Controlled, supervised exposure is what's needed. But that's just too much involvement, it seems, for many parents these days.
We can believe in you for 3 minutes, but beyond that, even the King of All Cosmos can't be expected to wait.
This means that the only people who bother showing up to the polls on election day are the ones who really have feel strongly on the issues. The accuracy of telephone and other "random" polls are often questioned based on this very fact (that the only people who bother to respond are already several standard deviations towards the edges of the bell curve in their opinions), but nobody questions the accuracy of the polling booths. Taking these two together, you get this:
Most politicians know they can't afford to upset or alienate these voters, and so they act in accordance with what those who got them elected (not necessarily their consituents) want.
Basically, we have a political body that feels the need to cater to the whim of an extremist minority viewpoint and has a stronger desire to get re-elected than it does to do the right thing in office. We can't make intelligent laws about topics that these people don't want discussed, and sex is one of them. There are some states that outlaw oral sex.
Example: The Defense of Marriage Act passed in the Senate 84-16, with similar percentages in the House, two years before the possibility of a same-sex marriage ever existed, as an insurance plan against Hawai'i legalizing such things. President Clinton actively signed the bill into law, despite the fact that he actively campaigned in support of the gay community, and that their support contributed to his election in the first place. Why? His spokespeople came forward, after he signed, and said that they felt it would've been political suicide for him to veto, and just as bad for him to let it become law without his signature, because he couldn't afford to alienate the religious voters. Four percent of the population is gay, and less than half of them are registered to vote. Thirty-one percent of Americans describe themselves as "devoutly Christian", and I suspect well over half of them are registered voters. You tell me who has more political power.
There are some states that outlaw oral sex. Twenty-six states (at my last counting) still ban homosexual sex between consenting adults above the age of consent despite their admitted inability to enforce such laws. Montana tried recently (1995) to make homosexuals register on their "published state sex offenders" list, the registry that lets the public find out if a convicted rapist or pedophile has moved in next door. Adultery is a crime in some states, though not in all. Prostitution is legal in only one state, Nevada, and even then only outside of city limits. The laws regarding sex are such a painful mish-mash of misinformation and religious interference that it's a wonder some state hasn't yet mistakenly outlawed procreation.
Getting the internet involved only makes the matter worse. We couldn't get rational laws before the internet. This just adds one more level of insecurity and paranoia. The two big laws created so far to "protect decency online" were made, not after careful consideration, but as knee-jerk responses to the fears of a vocal minority that happens to be a large voting bloc.