TDIF: Expression (Part 1: Morality)

In our ongoing series about the Declaration of Internet Freedom (you can read my previous posts here and here) today we’ll look at the Expression principle.

Expression: Don’t censor the Internet.

This principle seems simple enough, but then again nothing is as simple as it seems. The argument for censorship usually comes in one of two forms: moral arguments, and institution/financial arguments. Lets take the moral arguments first.

The internet is of course global and each individual country has their own cultural norms and free speech laws that govern what is and is not appropriate in their societies. Many countries including Bahrain, Yemen, Syria, China and others have strict laws that forbid certain kinds of speech and public displays that most certainly run counter to the “Don’t censor the Internet” declaration. It is easy for Americans to look at these countries and reprimand them for their strict censorhsip regimes, it is more difficult however for us to look at the United States and recognize that we also do not abide by the no censorship principle.

Censor that ‘Child Pornography’

Take the classic example of child pornography. Surely the act of using children to create child pornography should be illegal, we can all agree there. However as most people are aware it is against the law to knowingly own images of child pornography, and of course illegal to post those images online. The thinking here, I believe, is that owning child pornography creates a demand for it and if you can outlaw that demand then the supply for child pornography creators will disapper, thus less children being forced into porn. The argument here is tenous, just look at how outlawing marijuana has clearly not ceased the demand or supply, however lets agree that banning child pornography for the sake of saving children from performing pornographic acts is worth the cost of censorhip. However, the logic behind this trade-off is quickly unmasked when you look at cases in the United States that reveal that in reality is people’s moral aversion to the idea of child pornography that fuels this censorhsip.

First there is an American who is jailed for six months in 2010 for collecting cartoon images of underage sex and beastiality. Second a porn director who directed films that depicted minors having sex was originally sentenced to two years in prison in 2007 despite the fact that all the actors and actresses involved were adults. The list goes on and on and includes the FBI shutting down text only websites that describe various obscene acts. This seems counter to the argument that the goal is to dimish the demand for porn that includes minors, if anything this kind of material may satiate that demand and replace real harmful child pornography with this victimless kind.

In reality the reason these people went to prison wasn’t technically because of child pornography but because of obscenity, which many people might be surprised to learn is still illegal in the United States. In fact a new Obscenity Prosecution Task Force was formed by the Justice Department in 2005 to tackle the issue. The Wikipedia page on US Obscenity Law reveals the fascinating and troubling history of morality based censorship in the United States.

Censor it so the children don’t accidentaly see it

The United States also has a history of crusading against ‘indecent’ material online in the name of protecting children from seeing it. In 1996 the United States passed the Communications Decency Act which prohibited people from knowingly making available material that was “obscene or indecent” to minors online. With punishment of up to 2 years in prison people worried that speech about LGBT issues, human rights issues, and other controversial speech would be wiped from the internet. However the following year the Supreme Court struck down the law in Reno v. ACLU citing the fact that the law was vague, overly broad and would have a chilling effect on speech online.

However the United States, not to be dettered by the Supreme Court decision, passed the Child Online Protection Act the very next year in 1998. This time the law sought to restrict material online that was “Harmful to Minors”, defining that term in part as any material that…

the average person, applying contemporary community standards, would find,
taking the material as a whole and with respect to minors, is designed to
appeal to, or is designed to pander to, the prurient interest

This brought up questions of, on which communities standards would content be judged? While the Third Circuit Court of Appeals found it problematic to apply community standards to the “internet community” the Supreme Court ruled that the “community standards” used would be in the community in which the content was viewed. Therefor one might live in San Francisco and publish something provactative that if viewed by someone in Alabama would be deemed illegal. Luckily this law too was gutted by the Supreme Court twice (2002 and 2004) in Ashcroft v. ACLU. You can read all about that case and see a great time line on it at the Ashcroft v. ACLU Wikipedia page.

It wasn’t until 2003 that Congress finally got an internet consorship for minors bill past the Supreme Court with the Children’s Internet Protection Act. This law was more narrowly tailored to target the internet in schools and libraries by conditioning their E-Rate funding on complying with the law. CIPA mandated that these institutions apply censorship filters to their machines by default but that adults could request their disablement on a case by case basis. The case involving the law, United States v. American Library Association, again went all the way to the Supreme Court but was mostly upheld with 5 different opinions written. One of the major points established in the plurality opinion was that libraries are not a public forum and therfore not protected by the first amendment. The case also established that although the computer user would not know what websites were being ‘filtered’ the internet filters had to be enabled by default and could only be turned off upon request of an adult to the librarian, a contentious point because at the time different librains across the country were given different instructions on when they were allowed to disable the filter.

Conclusion

These examples above illustrate how even the United States has passed laws and fought tenaciously in court to uphold statutes that censor certain speech online based on moral arguments. Whether it is to protect children from seeing innapropriate material, or to ban obscene ideas altogether judgement calls made in American society have threatened to chill speech online numerous times and the fight shows no signs of letting up with new issues like censoring for cyber-bullying cropping up all the time.

Of course these actions are only the forces of censorship fueled by morality. Read in my next post about the even greater threat to free speech online from financial/institutional forces.

Updated: A great news story from July 5th about an attempt at censorship using the idea of child porn

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