Pornography and the Internet: Tackling an old issue in a new medium

By David Hudson
First Amendment Center

The old struggle to protect minors from sexual material without infringing on the free-speech rights of adults now occurs in a new place — the vast frontiers of cyberspace. The Internet has become a key battleground where the competing values of protection of minors and freedom of speech collide.

This global network of computers with no centralized control captivates, educates and facilitates speech to an extent unparalleled in human history. Every citizen can become a publisher or a pamphleteer on this "information superhighway." The "most participatory form of mass speech yet developed" is how one federal judge describes it.

But an increase in expression means more speech that offends. The Internet — which exhilarates some — intimidates and titillates others. This sets the stage for the conflict between those who celebrate the Internet’s free-speech capabilities and those who anguish over the dangers of unfettered expression, especially the dangers posed by pornography (or cyberporn, as it’s often called).

Pornography foes and many legislators argue that new laws are needed to protect minors from smut on the Net. They relate horror stories of unsuspecting adolescents lured into chat rooms, of innocents enticed into the cyber-equivalent of adult bookstores.

Civil libertarians counter that existing obscenity and child pornography laws are enough; no new laws are needed, they say. To them, the zeal to combat sexually oriented material on the Net threatens to strangle the growth of cyberspace and sacrifice adult free-speech rights at the altar of protection of minors.

Despite a White House-sponsored Internet summit last December to bridge the impasse, most issues remain unsettled. Anti-pornography groups, pro-family advocates and many legislators claim the Internet has become a haven for pornographers, that the information superhighway has been adulterated with smut.

Free-speech groups, on the other hand, argue that politically popular legislation targeting pornography sweeps too broadly and infringes on adult expression. Pornography foes cite the need for restrictions based on family values and declining morality, while free-speech advocates call the efforts censorship and an assault on democracy.

"Parents don’t want to send their children to school in a red light district," says Sen. Dan Coats (R-Ind.), who is leading the legislative charge to restrict the dissemination of Net porn.

"The problem of porn on the Internet is so huge and pervasive that it requires a multi-level response," says Karen Jo Gounaud, founder and president of Family Friendly Libraries. "It creates a deeper level of depravity and a devaluation of life in general."

Buddy Smith of the American Family Association agrees that "the quantity of sexually oriented materials on Web sites is a huge problem. The pornographers have cleverly disguised and designed their Web sites so that even an unassuming person surfing on the Web will run across this material," he told freedomforum.org.

On the other side of the equation, free-speech groups argue that a repressive climate of censorship threatens to destroy the benefits of cyber-communications. The National Coalition Against Censorship writes that "the Internet has become the lightning rod for the enemies of free speech."

Larry Ottinger, senior staff attorney for the People for the American Way, says that "the pro-censorship crowd has engaged in a pattern of overblown hype, trying to instill fear in people about the most important medium of communication ever developed, especially for young people."

The initial showdown between adult free-speech rights on the Internet and protection of minors came in early 1996 when the American Civil Liberties Union along with about 40 other groups ranging from libraries to nonprofits, challenged two provisions of the Communications Decency Act, a federal law that criminalized the transmission of "indecent" and "patently offensive" on-line communications.

The CDA and the Rimm study

The Communications Decency Act of 1996, or CDA, was a small component of a gigantic piece of legislation known as the Telecommunications Act of 1996. Designed to deregulate the communications industry, the telecommunications bill was viewed by many as landmark reform. Its stated purpose was to encourage "the rapid deployment of new telecommunications technologies."

The U.S. Supreme Court described the telecommunications act as "an unusually important legislative enactment." As First Amendment expert Robert Corn-Revere noted in his article "Red Lion and the Culture of Regulation" that appeared in Rationales & Regulations: Regulating the Electronic Media (1997): "As the first comprehensive rewrite of communications law in over six decades [since the Communications Act of 1934], the law was intended to remove regulation and free up competition."

The telecommunications bill contained seven different titles, six of which grew out of extensive committee hearings. However, Title V—the Communications Decency Act of 1996—received little attention or congressional review.

As Solveig Singleton, information policy director at the Cato Institute, observes: "It was ironic that the CDA became part of the telecommunications act whose whole purpose was deregulatory; the CDA was obviously not deregulatory."

In fact, the CDA’s purpose was to impose criminal penalties on those who transmitted obscene and indecent content over the Internet. The law’s regulation of obscenity did not trouble many, because at least since 1957 obscenity has remained a steadfast, though difficult to define, exception to the First Amendment’s broad protection of speech.

However, indecent speech, even if sexually explicit, generally receives First Amendment protection. The provisions that punished the transmission or display of indecent material greatly troubled the civil-liberties community.

But, the law’s indecency provisions received so little congressional attention that the Supreme Court would later write that there was an "absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA." The CDA was "a last minute amendment done with no debate," Ottinger says.

Sen. James Exon (D-Neb.) viewed the CDA as vital. He seized upon a 1994-95 study conducted at Carnegie Mellon University that warned of a proliferation of Internet pornography. Entitled "Marketing Pornography on the Information Superhighway," the study detailed the pervasiveness of online smut and became the centerpiece of a Time cover story on cyberporn.

The Rimm study, named for its principal researcher, Carnegie Mellon undergraduate Martin Rimm, drew considerable criticism in civil-liberty circles.

Professors Donna Hoffman and Thomas P. Novak of Vanderbilt University criticized it on "conceptual, logical and process grounds." In their analysis, they accused the study of "misrepresentation, manipulation, lack of objectivity and methodological flaws."

UCLA law professor Eugene Volokh described the study as "questionable" and "a form of junk science." Cyberlaw expert Mike Godwin of the Electronic Frontier Foundation, told freedomforum.org: "The Rimm study was funny from top to bottom. It’s not just that the research was bad; I believe it was intentionally deceptive."

Whatever methodological problems the Rimm study may have had, it inspired Exon and co-sponsor Coats to push the CDA, or the Exon Amendment, as it was originally known, through Congress.

The measure passed the Senate by an overwhelming 84-16 vote, although some members of Congress did voice their opposition. House Speaker Newt Gingrich said that Exon’s amendment "is clearly a violation of free speech and it’s a violation of the right of adults to communicate with each other. … I think by offering a very badly thought out and not very productive amendment, if anything, that put the debate back a step."

Nevertheless, most members of Congress focused on the perceived need to protect minors rather than on the constitutional concerns raised by the law. The legislation passed both houses, and President Clinton signed it into law on Feb. 8, 1996.