Fear of sex translates into laws on what we can say and show

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

02.01.99

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That reaction is so pervasive that if you mention "sex" in the same sentence with "children," the whole conversation shudders to a halt and after a stricken silence the next words to be spoken assuredly will be something along the lines of, "We've got to have more laws to protect the children."

Across the political landscape, elected officials labor to exploit this fear and provide the laws so many of us so earnestly demand. Because the Constitution has proven a bit of an obstacle to censoring more traditional forms of expression, lawmakers view a new communications medium like the Internet as a great opportunity for censoring speech under the guise of regulating technology.

So the Internet becomes the new field of constitutional experimentation for those who fear laws less than they fear sex and what incidental exposure to it might do to their children. There is no shortage of examples.

A federal court order temporarily blocking implementation of the Child Online Protection Act expires today. The court is expected to rule on whether to permanently block the act, which lays out penalties and punishment for commercial Web sites trafficking in material considered harmful to minors.

We've been down this road before, of course. COPA was enacted last year by Congress after its previous attempt to regulate Internet speech, the Communications Decency Act, was declared unconstitutional by the Supreme Court.

As a hedge against the possibility that this law, too, may be declared unconstitutional, U.S. Sens. John McCain, R-Ariz., and Ernest Hollings, D-S.C., a few days ago introduced yet another federal attempt to regulate speech on the Internet, the Children's Internet Protection Act. It would require public schools and libraries to filter Internet content in order to receive federal funds.

And on Jan. 27, a federal appeals court in Boston upheld the Child Pornography Protection Act, a federal law that makes it illegal to possess computer images that look like children in sexual situations — the so-called "dirty pixels law." U.S. District Judge Gene Carter had ruled in April that the law was unconstitutionally vague.

Meanwhile, state and local lawmakers will be introducing over the next few weeks several hundred separate laws proposing to censor sexual speech on the Internet.

What all these developments have in common, of course, is sex. Pictures about sex. Words about sex. Sites about sex. Money being made from sex. It's all about sex.

And children. Congress leaves no doubt about its obsession with children and sex, if one is to judge by the titles and content of its laws. Child Online Protection Act. Children's Internet Protection Act. The Child Pornography Protection Act. Congress may not learn from its mistakes but it does learn from the polls.

Sex is not what the Internet is all about, of course. But to read the front pages of our newspapers, to listen to the talk on radio, to watch the news specials on television, and to eavesdrop on ordinary conversation, one would think that is all the Internet has to offer: sleaze and filth and lewdness and indecency and, well, sex.

How did we come to this idea of sex as a disease and a danger?

Perhaps it was inevitable. When civilization and progress take care of the basic necessities like food and drink, fire and shelter, and, yes, sex, we turn to more refined pursuits, or pleasures, if you will.

Thus the kitchens of fine restaurants and the aisles of our supermarkets titillate with all manner of tempting confections and conveniences that boggle the mind and enlarge the waistline. The campfire outside the smoke-filled hut has become a $5,000 charcoal grill on the deck of a mansion equipped with a gas fireplace that one lights with a remote control to supplement the thermostat-controlled heating and cooling system that bathes the interior in air that has been filtered, humidified and sanitized for our comfort.

And so it is, too, that we have refined the sexual. It no longer is just the grunt and grind of furtive activity in the dark or even the childish graffiti on the wall of the cave. Now, sex is the element of choice in the marketing of everything from clothes to cars. It is a lucrative revenue stream for the Porn Barons of the web. Sex in a myriad variations, versions and venues.

Sex, like food, is no longer a matter of survival of the individual or the species but the pursuit of ever-more-refined entertainment and pleasure. But we have quite contradictory ways of coping with such "progress."

Food and drink rival sex as the favored subject in newspapers, magazines, radio, television, even music and movies. Oh, we fret some about its effects on our health, but we still love it and consider it a legitimate part of civilized life. Certainly, we don't think of food as a menace to society. Certainly we don't countenance laws to banish depictions of food and eating from our lives.

When it comes to sex, though, well, that's another matter. We just aren't all that comfortable with it. Until genetic manipulation or some other technology relieves us of the necessity of engaging in the act itself, our civilized impulse is to repudiate sex by regulating speech about it.

The First Amendment, of course, says that Congress should make no law abridging the freedom of speech, but from the Comstock era right on down to the present it has made a raft of such laws abridging speech about sex. Many of those laws about contraception, abortion and whatever was considered "obscene" at the time remain on the books, monuments to our fear of sex.

Since the Constitution and the courts generally prevent us from censoring sexual material for adults, we try to censor for the good of our children. The irony, of course, is how willing some of us are to deal away the real rights of our children in the future to protect them from a virtual harm in the present. It is the regulatory equivalent of destroying the village to save it.

Another irony in such laws is the idea of compelling "pornographers" to prove their right to speak. "I want to put the burden on pornographers," Virginia Republican Rep. Bob Goodlatte said in 1997. As if one person's definition of "obscene" and "harmful to minors" and "pornography" were the same as everyone else's. As if freedom of speech were something we must earn or qualify for, conditioned on the approval of members of Congress or official minions prosecuting its laws.

Such an approach to proscribing speech about sex reminds us that this is an issue not so much about where we draw the line but about who gets to draw that line.

Ultimately, it's in the best interests of children and adults alike that the authority and power to draw that line remain close to home; otherwise we cede to the government and the vociferous a power over our lives that mocks the very idea of freedom.

The prospect of that should be at least as terrifying to us as, well, sex.

Paul McMasters can be contacted at pmcmasters@freedomforum.org.

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