ARTICLE: PROTECTING THE FIRST AMENDMENT ON THE INTERNET

INTERVIEWED ON FIRST AMENDMENT LAW ON NBC'S TODAY SHOW, O'REILLY FACTOR & MSNBC TV; LOCAL CBS & NBC NEWS; BBC & CNN RADIO; WASHINGTON POST, USA TODAY & ASSOCIATED PRESS (click here).

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. First Amendment to the United States Constitution.

"Monsieur l'abbé, I detest what you write, but I would give my life to make it possible for you to continue to write." Voltaire, letter to M. le Riche, February 6, 1770.

NEW FEDERAL COMMITTEE SEEKS WAYS TO LIMIT CHILDREN'S ACCESS TO ONLINE PORNOGRAPHY

By Jonathan L. Katz

Be on the lookout for a new federal committee that is attempting to identify ways to "protect" minors from online pornography. The committee was organized in 2000, and has been hearing testimony from numerous people interested in this debate. In true Washington-ese, the project name is a mouthful: Tools and Strategies for Protecting Children from Pornography on the Internet and Their Applicability to Other Inappropriate Internet Content

The committee was appointed pursuant to the Protection of Children from Sexual Predators Act. The Act calls for the National Academy of Sciences' National Research Council to study "computer-based technologies and other approaches to the problem of the availability of pornographic material to children on the Internet, in order to develop possible amendments to Federal criminal law and other law enforcement techniques to respond to the problem."

The committee will produce a report to Congress on its findings, conclusions and recommendations. The report is to include a discussion of technologies for controlling online pornographic material, and techniques needed to ensure the effectiveness of such controls. The committee claims that it will not "embed particular social values" in its report; let us hope so.

The committee members were selected this year after a search claiming to draw from "top scientists, engineers, and other experts." If that was the goal, it would have been wise to select a chairperson with a more neutral background than former Attorney General Richard Thornburgh. Mr. Thornburgh's Justice Department aggressively pursued obscenity prosecutions during the Reagan and Bush Administrations.

The remaining sixteen committee members are mainly drawn from universities, computer technology businesses, child advocacy, the library field, and religion. The committee's funders include the Justice and Education Departments, Microsoft, IBM and the Kellogg Foundation. The committee's work would seem more objective if it were exclusively funded by tax dollars.

The committee has already held two of its six meetings -- both in Washington, D.C. -- which have focused on public testimony mixed with closed-door meetings. The first meeting focused on First Amendment issues; technological issues; and perspectives involving libraries, schools and communities. The second meeting focused on child development; pornography laws; and the views of Internet service providers, education associations, teenagers, and the adult entertainment industry.

For the second meeting, I represented the Free Speech Coalition on a panel entitled "Understanding the Obscenity Laws". Unfortunately, the panel's numerous anti-pornography members kept blurring or ignoring the distinction among obscenity, pornography and kiddie porn. The difference is critical, because the Supreme Court has held that obscenity is not protected by the First Amendment, which is not the case for all pornography.

The obscenity law panel members were myself, a federal public defender, a prosecutor from the Justice Department's Child Exploitation and Obscenity Section, an FBI representative, the director of the National Center for Prosecution of Child Abuse, a former federal obscenity prosecutor, and the head of Morality in Media and the National Obscenity Law Center.

I testified about the substantial difference between the definitions of obscenity and pornography. I stressed that the Supreme Court's obscenity definition is unworkable, and that obscenity prosecutions inevitably chill constitutionally protected speech. I further urged that, aside from limiting obscenity, it is disingenuous to the First Amendment for the government to be involved in prohibiting children's access to adult entertainment. The only way to harmonize such government restriction is to amend the First Amendment, which is clearly undesirable.

Fortunately, the Justice Department's Obscenity Section attorney testified that very few obscenity prosecutions have taken place under the Clinton administration. However, kiddie porn prosecutions are alive and well, as are prosecutions of adults who contact minors online for sex. A Bush administration would likely increase obscenity prosecutions to please moral conservatives in Congress and among Bush supporters.

One of the panel's most ardent anti-pornography activists was Robert Peters, who heads Morality in the Media and the National Obscenity Law Center. After I twice insisted that Mr. Peters was mis-stating the Supreme Court's obscenity definition, Mr. Peters finally admitted that there is no minimum threshold for what is obscene (he previously insisted there was), and that the obscenity definition is a compromise. Reminiscent of the anti-drug warriors faced with the failings of the drug war, Mr. Peters framed the obscenity issue as a choice between pursuing obscenity prosecutions and letting obscenity continue.

Some of the anti-pornography panel members attempted a flawed connection between sexual child abusers and the possession of pornography. One panel member insisted that pornography is typically found in the homes of sexual child abusers. To accept this connection is no more rational than concluding that because sexual child abusers' homes have toothpaste, that all toothpaste users are suspect.

The more troubling questions from the committee are hopefully not an indication of the contents of the final report. One member tried to draw a flawed analogy between pornography getting into his child's computer and an intruder trespassing at his residence. Another member appeared to suggest that the chill of potential obscenity prosecutions might not be a bad thing. Another member asked about effective ways to pursue civil, rather than criminal, sanctions against providers of online adult content. Although not desirable, potential civil sanctions include heavy fines and civil asset forfeiture.

Robin Raskin of FamilyPC Magazine indicated, hopefully in jest, that she was unaware of any intelligent adult entertainment businesspeople. I informed her that the upcoming adult industry panel should change her mind. In response to the disappointment I expressed that this committee even exists, Ms. Raskin asked if I was also offended by the activities of Reagan Attorney General Ed Meese's anti-obscenity commission in the mid-1980's. Absolutely yes. I spoke with Ms. Raskin during the following break, and she claimed she did not want to censor adult content, but wanted it segregated into a dot-xxx domain; that still sounds like censorship, even if the content still gets transmitted.

I spoke with some of the committee's other members during a couple of breaks, and sought assurances that the committee was not dominated by people seeking censorship of online adult entertainment. Such assurances were given by the University of Chicago's Provost Geoffrey Stone, who is also a past board member of the Illinois Civil Liberties Union; Rutgers University communications professor Nicholas Belkin; and Berkeley computer science professor David Forsyth. However, the very existence of such a government-appointed committee suggests bias towards government interference, particularly when considering the very title of the statute that created the committee: the Protection of Children from Sexual Predators Act.

The committee later heard from a panel of adult entertainment industry representatives. The industry panelists were Danni Ashe of Danni's Hard Drive, Flying Crocodile's JT Edmond, Free Speech Coalition President Gloria Leonard, Playboy Online's Larry Lux, and Penthouse.com's Gerard Van Der Leun. Strangely, Playboy's Larry Lux attempted to categorize Playboy as not being part of the adult entertainment industry, and as being no more explicit than the current issue of Vanity Fair magazine. Penthouse's Gerard Van Der Leun understandably expressed puzzlement over such a claim. Moreover, he reminded the committee of America's bipolar relationship with sex; how true.

The adult entertainment industry panel presented a strong argument that economic market forces tend to dictate that online adult entertainment will be focused on adults, who have the primary buying power for such entertainment. Although online adult entertainment is accessible to minors, the panelists emphasized that online entertainment providers who do not focus on adults face economic failure. Window shopping visits to adult websites amount to lost bandwidth investment by online providers. Unauthorized purchases by minors with their parents' credit cards lead to costly credit card company fees to providers for reversed charges.

The adult entertainment panelists talked about steps they take to limit minors' access to their online material. First, credit card billing for content reduces access to minors. Second, Internet filtering programs for children are aided by meta tags that confirm the site is for adults only. Third, adult sites often cannot be accessed before confirming that visitors are adults -- either through adult verification systems or by relying on visitors' honesty about their age.

Danni Ashe advocated creating a child-safe Internet domain, and written standards to restrict content in that domain. Enforcing such standards, however, would be censorship. It is better to let website owners select their own domains; an adult website, for instance, has no profit motive to select a children's domain.

The adult industry panel members aided the free expression cause by showing themselves to be well-spoken, intelligent businesspeople who speak in rational tones of voice and with rational trains of thought.

This committee will have its say with Congress, so it is important for First Amendment friends to have a say with the committee. Comments to the committee can be sent to The Committee on Tools and Strategies for Protecting Kids from Pornography, c/o National Research Council, National Academy of Sciences, 2101 Constitution Ave., NW, Washington, DC 20418.

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Jonathan L. Katz is a partner in the Silver Spring, MD, law firm of JON KATZ, P.C.. He is the Free Speech Coalition's representative in Washington, DC. Jon is at 8720 Georgia Ave., Suite 703, Silver Spring, MD 20910, (301) 495-7755, jon[at]katzjustice[dot]com, www.katzjustice.com. Nothing in this article is intended to be legal advice. For legal advice, please consult a qualified attorney.

First appeared, with edits, in Adult Video News, January, 2001

UPDATE: The Thornburgh Committee issued its formal report on May 2, 2002. The full report is available online here. The agenda for the panel on which I advocated for First Amendment rights is here. 

JON KATZ, P.C., vigorously fights for the rights of the adult entertainment industry. We provide broad-based service to the industry for criminal and obscenity defense, Internet matters, constitutional and civil litigation, First Amendment advice, and business advice. Partner Jon Katz is President of the Free Speech Coalition of the District of Columbia, Maryland, and Virginia, Inc. The media frequently turns to Jon for opinions and analysis on vital issues facing the adult industry (click here). For further information on our experience serving the adult entertainment industry and Constitutional rights, click here. 

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