CartA Call for Discretion on the Internet
Doug Groothuis
Now that the Supreme Court has struck down key portions of the Communications Decency Act (CDA) as violating the First Amendment, we should pause to reconsider the meaning of rights, free speech, and censorship on the Internet.
Although the decision is rife with legal complexities, seven justices concurred in striking down the heart of the CDA largely because its intended protection of minors might prohibit some adults from receiving or distributing pornographic material, which they claim, would be an infringement of their right of free speech.
Yet it seems that our concept of rights is in need of drastic overhaul when the supposed right to procure indecent material transcends our responsibility to protect children from smut. A rights-driven culture and Court multiplies demands—no matter how frivolous or prurient—at the expense of obligations to the broader community.
Attempts to control public expression are labeled "censorship" and are said to have, according to the Court, "a chilling effect on free speech." Yet curbing some public expression is not always evil, nor must it inhibit the healthy exchange of ideas in a free society. Porn shop locations are already restricted by zoning laws, and the shops are not permitted to serve minors. The aim of the CDA to restrict minors from having access to pornography follows the same line of reasoning.
Moreover, pornographic material is hardly the fiber of public debate or rational discourse. It presents no arguments and reaches no conclusions. Free speech is not threatened by restricting some indecent materials from reaching the screens and souls of children—or adults for that matter. Nevertheless, as Robert Bork states in Slouching Toward Gomorrah, "First Amendment jurisprudence has shifted from the protection of the exposition of ideas towards the protection of self-expression—however lewd, obscene, or profane." This modern trend is not rooted in the original meaning of the Constitution or in sound legal logic.
Where does a right to distribute and/or consume pornography originate? It is neither God-given nor inalienable. As Bork notes, "Why there is a right for adults to enjoy pornography remains unexplained and unexplainable." On the other hand, recognizing that minors have a right to be protected from injurious material is reasonable. This is a right that the state can help insure to some small but not insignificant measure.
Criminalizing the distribution of indecent materials to minors is not too much to ask. Again, Bork is right: "The government ought not try to impose virtue, but it can deter incitements to vice." Parents should do what they can at home to keep offensive materials from invading their home computers by using blocking programs such as Cyber Patrol and, more importantly, through their moral guidance and example. But given the wide Internet access many children have outside the home and considering their abilities to bypass their parents best intentions, an external fire wall should be put in place. As media critic Michael Medved observes, "To say that if you don't like the popular culture, then turn it off, is like saying if you don't like the smog, stop breathing."
The Court argued that the CDA would have curtailed some forms of sexually explicit communication that is not indecent, such as materials on sex education and prisoner rape. It also stated that "the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech." Maybe so; but this does not mean the solution is Internet anarchy. Instead, legislators should draft a more carefully crafted law permitting the distribution of some sexual information—if it has socially redeeming value—as well as penalizing the promotion of pornography to minors. Let us encourage our legislators to design and aggressively support such a bill, which would also precisely define "indecent" and "patently offensive," terms left ill-defined by the CDA. This would give the Court another opportunity to support, in its own words, the "importance of the congressional goal of protecting children from harmful materials."
The Court claimed in its conclusion that "the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." It is, however, the lack of moral restraint and the reckless multiplication of fictional rights that are proving harmful in this increasingly crude and coarse society. If we replace the inflammatory and thought-stopping word censorship with discretion, the debate finds its proper terms, and the possibility of fruitful analysis returns from exile. Discretion is always beneficial for minors and adults alike.