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Censoring the Internet is unnecessary, unethical, unconstitutional, and would prove counterproductive to its continued evolution. I. Censorship Debated A. Arguments For Censorship 1. Obscenity a. Pornography b. Availability 2. Illegality a. Weaponry b. Pirating B. Arguments Against Censorship 1. Isolated Cases a. Media Influence b. Ignorant Populace 2. Free Speech a. Unconstitutional b. Counterproductive 3. Conscious Access a. Invited Information b. Supervision Required 4. Hopeless Control a. Geographic Jurisdiction b. Net Nature II. Censorship Implemented A. Landmark Legislation 1. CDA a. Function b. Ruling 2. COPA a. Function b. Ruling B. Miscellaneous Implementation 1. NYPL a. Function b. Ruling 2. CPPA a. Function b. Ruling III. Censorship Resolved A. Parental Responsibility 1. Guidelines a. Internet Rules b. Adult Supervision 2. Knowledge a. Classes b. Brochures B. Private Alternatives 1. Internet Service Providers a. Automatic Blocking b. Account Controls 2. Third Party Solutions a. Filtering Software b. Logging Software
The Internet is a powerful new marketplace of ideas and vast democratic forum that is dramatically expanding in the absence of government regulation. Realizing this, the Supreme Court imposed the highest level of constitutional scrutiny on content-based infringements of Internet speech. As with all mediums of communication, however, the desire of some to restrict speech has proven inevitable; but the Internet is not subject to the traditional rules that have allowed previous mediums to be regulated. Freedom of speech on the Internet has been vehemently defended by civil rights groups and the Supreme Court, and every challenged bill has been proven unconstitutional. Furthermore, the nature of the Internet does not allow itself to be governed by any single entity, and its decentralized physical structure prevents any form of universal monitoring or filtering. Censorship is unnecessary, unethical, and unconstitutional, and would prove counterproductive to the continued evolution of the Internet.
The primary targets of censorship advocates are materials on the Internet that are deemed "obscene" or "offensive." These advocates usually base their judgment on right-wing, conservative, and Christian ideology (Johnston). Pornography, in particular, has been the traditional scapegoat of Internet obscenity because of its supposed "degrading content" and "ability to corrupt." Governmental censorship was first enacted, in the form of the Communications Decency Act (CDA), as a result of numerous studies conducted on the prevalence of pornography and other objectionable material on the Internet (Johnston). The attempted censorship of obscene materials has been justified by supporters because it "protects children from harm." Sadly, this appeal to pity is the foundation upon which all censorship bills have been shakily constructed. Senator Jim Exon, who is responsible for the CDA’s inception, states: "we are talking about our most important and precious commodity - our children. We cannot simply throw up our hands and say a solution is impossible or the First Amendment is so sacrosanct that we must stand by while our children are inundated with pornography and smut on the internet" (Johnston). Exon was compelled to act after viewing a segment on Dateline NBC in 1994, which portrayed the Internet to be a dumping ground for pornographic material. Another supporter of censorship, Adrianna Huffington, says she is concerned about our society "allowing the deviant and the criminal to become part of the mainstream." She further claims that, "the red-light districts can invade our homes and our children’s minds." She concludes that obscene material is harmful to children and should be removed from the Internet.
There is another, less-commonly argued point by censorship supporters: that the availability of "illegal information" also poses a threat to children and society. One study of Internet materials conducted by Diamond and Bates unearthed web pages regarding bomb-making, suicide methods, guides for growing marijuana, the Anarchist’s Cookbook, anti-Semitism, and more (Johnston). The content of these pages will certainly be offensive to some, and the information offered could be used for illegal activities. Software corporations have jumped on the censorship bandwagon by lobbying Congress and threatening both Internet Service Providers and Website Hosting Services with lawsuits for possessing information that would aid in software piracy or other violations of software licensing agreements. Yet, these arguments are fatally flawed because there is no such thing as "illegal information." The information available on the Internet could be implemented in illegal actions, but the presence of the information itself is perfectly legal.
Although most Internet users are convinced of its general utility and positive benefits, the naive reader of the daily newspaper might well conclude that most Internet users pass their time by pirating software or distributing child pornography (Shallit). Yet, these actions are not as common as one is led into believing, and are illegal acts in their own - requiring only law enforcement, not censorship legislation, to diminish. The media and government would like for everyone to believe that there is some disease plaguing the Internet that can only be remedied with censorship. They describe the sexually explicit material available with very unusual pictures and pedophiles soliciting minors as examples - fringe elements as they are. Emphasizing the negative achieves higher ratings and greater sensationalism, and also instill greater fear in parents and administrators. This sensationalism is primarily responsible for the public’s, and thus, legislator’s lack of understanding about the true nature of the medium (Zuzga).
"Those who call for more regulation or censorship often treat the Internet as if it were some terrible dragon that needs to be slain; they are often ignorant of the Internet culture and seem almost proud of their lack of technological literacy" (Shallit). Unlike radio and television, the Internet does not assault its users with unwanted content automatically. Internet users have an unprecedented degree of control over the material they and their children can access (Pavlakis). Yet, as a result of the misinformation spread by the media and government, society has become ready to waive its First Amendment rights to combat an enemy that has neither harmed them nor broken any law. Those unfamiliar with Usenet, for example, may picture pornography appearing, unbidden, on users’ computer screens; but it is nothing like what the media describes. To read a particular newsgroup, one must explicitly subscribe to it by name. It is difficult to feel sympathy for one who chooses to read "alt.sex.bestiality" and is shocked at what he finds (Shallit). Other propaganda conveys the idea that images and discussion available are degrading to women. But it is the censorship of such sexually explicit material that is more harmful to women, because it denies their sexuality and prevents them from discussing it. If anything, open discussion, not censorship, is the only thing that will cause society to grow beyond its current difficulties in sexual politics (Zuzga).
The underlying problem with every attempt to block obscene speech is that constitutionally-protected speech will inevitably be blocked as well. The Supreme Court states that "the government may not justify the suppression of constitutionally-protected speech under the guise of protecting children" ("Ashcroft"). Justice Holmes adds, "if freedom of speech means anything at all, it means protection for the thoughts we hate, not just for the thoughts we agree with" (Shallit). In spite of the claims of censorship proponents, pornography is a protected form of speech, and there exists no unbiased statistical proof that pornography "harms" children in any way ("Ashcroft"). Also, while knowingly giving indecent materials to a minor is illegal, unknowingly giving material that is not screened but turns out to be indecent is not illegal. Thus, one would be hard-pressed to guarantee that any online source of material is safe for minors (Zuzga). The primary objective of all Internet regulation legislation passed by Congress has been to protect children from pornography. Therefore, each bill has been blatantly unconstitutional from conception.
It is true that the legislation passed has also been to protect children from speech other than pornography, and this is where the trouble begins for determining what kind of speech is obscene and what is not. The Miller test for obscenity seems like the ideal solution, but there are as many interpretations of what is obscene as there are denizens of the Internet. In 1988, the Supreme Court said that the government "may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations" ("Ashcroft"). Ultimately, the ambiguous definitions in the various legislations on which speech is acceptable and which is punishable will cripple the free flow of thoughts - people will not want to risk fines or imprisonment on debatably obscene speech, and will avoid communicating what they originally intended. The consequences of oppressed speech are far more dire than eliminating a non-existent threat to children who access such speech. The pro-censors are metaphorically arguing, "we should not have electrical outlets in any of our houses because my child might be electrocuted by one in my house." The benefits of electricity far outweigh the risk of a few children electrocuting themselves. Any change to the already unregulated nature of the Internet would only be counterproductive to its evolution as a communications medium.
Censorship proponents claim that the Internet is a broadcast medium and is therefore subject to regulation like radio and television, but this is untrue. The Internet is unlike other communications mediums because once initiated, it does not constantly transmit data. Granted, it may be able to widely distribute information, but each web page one visits or picture one views is consciously accessed. If one wishes to view objectionable material, then that is his choice, but no one is being forced to; thus, there is no reason to censor that material (Johnston). Pornographic sites are not loaded onto a computer inadvertently; one must know the address of such sites in order to visit them. Since books, magazines, and other printed material must be physically brought into one’s home, they are considered "invited" and cannot be censored. By purchasing a computer, an Internet connection, using browser software, and typing in the address of a web page, one explicitly invites information into one’s home (Johnston). This choice should exempt such information from censorship, just as with the aforementioned printed sources. Any material should be allowed on the Internet, because it is up to the individual to determine whether he wants to view it or not.
Looking back to the electrical outlet metaphor, if a parent has a problem with the harm the outlet might cause, he should teach the child to act cautiously around outlets. If the child refuses to comply with the parent’s request, then it is the parent’s responsibility to prevent the child from harming himself by installing some plastic outlet safety covers. If the child is savvy enough to remove the safety covers and then get electrocuted, it is still the parent’s fault for not being able to supervise or better manage the child. The responsibility for controlling a child’s access to the Internet belongs to parents and other concerned individuals, not the government.
Legislators have also failed to realize that censorship is technically hopeless to implement. It is impossible to monitor all materials being transmitted over the Internet, especially considering how it transcends international boundaries and a plethora of languages (Pavlakis). Therefore, once a speaker posts content on the Web, it is available to all other Web users worldwide. No means exist for a speaker to know the age of a user who is accessing his communications in this manner. This means that censorship legislation would deny both adults and minors access to any speech that may be considered "harmful to minors" ("Ashcroft"). In addition, the United States’ jurisdiction ceases to apply once communication is outside of its borders; thus, legislation would fail to protect minors from the forty percent of Web content that originates abroad ("Ashcroft"). One suggested way to strengthen the enforcement of Internet laws is to unite the governments engaged in its use. Yet, this is not realistically possible and could only happen in a utopian global society. There could not be a common set of policies found amongst governments with such a wide variety of social, ethical, and moral values (Pavlakis).
The original purpose and structure of the Internet was focused around allowing decentralized communication to occur. If one node in the network were to become damaged, a different route would be used to relay the message to the same destination. John Gilmore, co-founder of the Electronic Freedom Foundation, once remarked, "the Net interprets censorship as damage, and routes around it." Even if authorities somehow managed to monitor and enforce some areas of the Internet, existing technologies would immediately give rise to rebel means of communication. Encryption, steganography, anonymous remailers, proxies, and free accounts all ensure that information would continue to flow unimpeded.
In spite of the innumerable arguments against censorship, legislation has been created to criminalize those who communicate obscenity. The Communications Decency Act was passed in 1996, and defined indecent speech to be depicting or describing sexual or excretory acts or organs in a patently offensive fashion under contemporary community standards (Wallace). Supreme Court cases such as Butler v. Michigan have held that printed matter cannot be held to indecency standards; the extremist rationale of the CDA was that censorship, which would be impermissible to the printed word, is appropriate for the electronic word (Wallace). Yet, there is no justification for segregating the printed and the electronic word - the consequences are becoming obvious as printed works decline in number versus those available on the Internet. Furthermore, the constitutionality of the CDA cannot be determined by whether or not children are protected. In Butler v. Michigan, the Supreme Court declared that setting all public discourse at the level acceptable for children would be "burning down the house to roast the pig" (Wallace). There was also a complete lack of foresight in realizing what would fall within the CDA’s indecency standards; works on health, STDs, rape, sexual fulfillment, and the Bible would be outlawed (Wallace).
The CDA was Congress’ first attempt at censoring speech on the Internet, and was ruled unconstitutional by the Supreme Court on June 26, 1997 (Civil). The Court concluded that "governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship" (Johnston).
Passed in October 1998, the Child Online Protection Act (COPA) made it a crime for anyone via the Web to make a communication for commercial purposes that was "harmful to minors" unless the person had restricted access by minors by requiring a form of age verification (Child). The only technologies available for compliance with COPA were credit cards and adult access codes. As the district court found, and the court of appeals affirmed, given the nature of the Web, even with these defenses the COPA would prevent or deter both adults and minors from accessing protected speech ("Ashcroft"). The plaintiffs in the case testified that, because of privacy concerns, users would simply forego accessing their material if forced to provide a credit card or adult access code. Furthermore, a single web page may have had some content prohibited under COPA and some that was not. Because text is more difficult to segregate than images, COPA would have forced the blocking of entire web pages, even if much of the page’s text was not harmful to minors ("Ashcroft").
The Child Online Protection Act was declared unconstitutional under violation of the First Amendment on April 11, 2002. The broadcast medium is the only medium in which the Court has upheld a national standard for "patently offensive" content, defined by a federal administrative agency. COPA would have required myriad juries around the country, not a single agency, to determine what was "patently offensive." Previously, the Court rejected the government’s attempt to treat the Internet like broadcast ("Ashcroft"). Also, COPA would have not restricted the wide range of "harmful to minors" materials provided non-commercially on the Web, and through non-web protocols on the Internet such as newsgroups or chat rooms; and of course, there remains forty percent of the Web content originating abroad that would have been untouchable by COPA. The law would have also prevented adults without credit cards from accessing protected speech. It was determined that less restrictive alternatives - such as filtering software and other technologies - do a far better job of protecting children than any law ever could. COPA, like the CDA before it, threatened to chill the level of discourse on the Internet to that "suitable for a sand box" ("Civil").
There have been many other miscellaneous attempts to suppress speech for the sake of protecting children, most of which have met the same fate prescribed by the Supreme Court in the aforementioned cases. The New York Penal Law was temporarily revised to make it a crime to disseminate "indecent" materials through any computer network. Norman Siegel of the New York Civil Liberties Union commented, "it is sad that the state of New York, known for its wide-ranging free speech traditions and dedication to the arts, has passed a law that could send a person to prison for up to four years for talking about safer sex, or displaying online classic nudes or other artistic images" (Pietrucha). Ann Beeson of the ACLU agreed, "the only group this law protects is politicians, who can claim they are passing ‘tough’ legislation" (Pietrucha). The Child Pornography Prevention Act, another vote-grabbing "feel good" law, was struck down by the Supreme Court on April 16, 2002. Justice Kennedy summed up the negative argument: "the right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. Speech may not be prohibited because it concerns subjects offending our sensibilities" ("Internet").
Some parents are worried that their children will stumble onto potentially inappropriate material on the Internet, but it is the parents’ job to monitor what their children are up to, not the government’s (Nuss). "Parents must take an active role in paying attention to what their children are looking at on the computer. The television acting as a baby-sitter has now given way to the computer performing that same task, and there is much more damaging material available by computer than by television alone" (Nuss). The solution can be as simple as placing the computer in a room where a child’s usage can be clearly and easily monitored. Above all, children should not use the Internet until they have received explicit instructions and guidelines from their parents. Just as with television, children should follow rules, know what they should expect when they browse the Web, and ask questions when a problem is encountered (Portelli). Technological ignorance is no excuse for a parent to relinquish this responsibility. Computer and Internet classes are available; brochures exist that outline the risks to children, address the ways to reduce those risks, and explain how parents can educate themselves on key issues (Portelli).
For those who are convinced that a form of censorship is necessary, there exist numerous alternatives to wide-ranging laws prohibiting obscenity. Certain Internet Service Providers will automatically block obscene content from ever reaching a computer. Others offer parental account controls that dictate what web sites a child can visit or whether or not they can participate in interactive chat or forums. The government expert in the COPA case testified that, unlike COPA, parental use of blocking software can prevent access to foreign sites, content on non-web protocols, and material from non-commercial web sites ("Ashcroft"). Filtering software allows greater control over what a child can access because it can single out bomb-making pages, for example, that would otherwise be immune to legislative censorship. Logging software is available to trace the activities of a child if the parent does not wish to restrict their browsing habits with filtering software. This allows a parent to place trust in a child to not visit certain sites; if the child violates that trust, the parent will know. With so many customizable options available to concerned parents, there is no reason to push for laws that cannot guarantee nearly as many results.
It is acceptable for people to be concerned for the welfare of their children on the Internet or scrutinize its usefulness. It is deplorable, however, for those same people to meddle with others’ Internet capabilities. Not only is regulation impossible to achieve, but the mere thought of one’s speech being silenced because another finds it offensive is absolutely despicable. According to John Barlow, author of the Cyberspace Independence Declaration, "we are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity." Any proposed censorship legislation runs counter to the ideals preserved by the First Amendment - ideals upon which America was founded.
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