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Brea Bennett at Twistys

January 10, 2000 11:19am
XXX!!: Sex and Free Speech
Source: Reprinted in whole from slashdot.org
by: JonKatz

From the The-Net-vs-the-Unconscious-Civilization dept. The United States loves to see itself as the cradle of liberty, but when it comes to sex, America mostly demonstrates its prudishness and hypocrisy. Sex is our national taboo.The Net, our new national taboo-buster, along with a spate of new laws and court rulings, have all taken this national phobia to meltdown. Are free speech and the online liberation of sexuality incompatible?

For years, it's been impossible to conduct anything like a rational public -policy discussion about the dissemination of sexual information in the United States, a country which constantly proclaims itself the cradle of liberty while being censorious, prudish and hypocritical when it comes to sex.

Sex, in fact, is our national taboo, and the Internet has taken this national phobia to meltdown levels.

America Online loves to position itself as the Main Street of the Internet, but company officials have never been willing to discuss how much of its revenue comes from sex-related chat rooms (in l996, Rolling Stone Magazine "conservatively" estimated AOL's monthly sex chat take at $7 million). If you want to take a guess, just type in a few keywords and consider your options.

That's not a bad thing. Politicians and journalists like to call all sexuality "pornography"or "smut," but services like AOL have permitted the open discussion of sexual issues, preferences and orientations for the first time in American history, even if they'd rather not brag about it. Hapless Americans no longer have to risk arrest or humiliation by hanging around peep shows or porn parlors. They can go online.

This has sent our many moral guardians into hyper-drive, invoking the safety of children as an excuse to beat back the sexual revolution made possible by the digital one.

And it's brought entrenched notions of free speech directly into conflict with emerging sexuality, and the dramatic increase in the availability of sexual imagery. Talk about the unintended consequences of technology.

There's no question sexual predators exist, online and off. Or that the Net has given them a powerful new venue in which to operate. But sex crimes against children are rare online, or as the result of going online. Law enforcement officials, perhaps seeking to expand their jurisdictions and bureaucracies, are continuously sounding alarms about online predators. But federal agencies like the FBI, the National Center for Missing and Exploited Children, and private researchers like author Don Tapscott report that children are many times more likely to be abused by someone they know at home than as the result of sexual encounters online.

Surprisingly, there are no broadly agreed -upon estimates of how many children are victimized by online predators. There appear to be few, especially when considered in proportion to online use. In preparing a book about children and online safety and culture several years ago, several researchers and I were able to project that kids were much more likely to have an airplane fall out of the sky onto their heads than to be harmed as a result of going online.

Estimates range from a handful to a few hundred each year, and the great bulk of those involve older adolescents and teenagers drawn into obsessive or unhealthy relationships.

But it's striking, in the hysteria over kids and sexual imagery online, that there is no reliable data about the number of victims.

This doesn't slow down the media, which continuously sensationalizes the rare instances in which children are lured into real-world encounters by criminals operating online, and panics parents and educators into seeing the dangers as much greater than anyone has proven them to be.

Both journalists and politicians not only confuse sexual imagery with pornography, they also equate any exposure to sexual imagery with danger. This makes anything like a sane public policy discussion of sexuality and the Net impossible, either in Congress, at local school boards or private homes.

Schools, libraries and parents, caught in the middle of this confusing debate, have increasingly washed their hands of this explosive issue, and turned to blocking and filtering programs as a response. Politicians have weight in with blatantly unconstitutional responses like the Communications Decency Acts or equally unconstitutional and unenforceable state statutes like one overturned this week in California.

Monday, Contra Costa Superior Court Judge John Minney declared unconstitutional a penal code section that made it illegal to send sexual material over the Internet if the sender knew the recipient was a minor. Constitutional lawyers called this ruling reasonable and necessary -- as did a staff attorney for the Electronic Frontier Foundation -- since the First Amendment protects the right of citizens to distribute sexually explicit material.

In this case, a former middle school teacher was arrested in April after he was caught allegedly attempting to seduce a 14-year-old boy by chatting online and sending explicit photographs. The "victim" was actually a police officer posing as a minor, the latest in a series of cases in which undercover officers "police the Net" by seeking to snare adults who approach children in sexually explicit ways. Predators who seek to assault children or exploit their bodies commercially are already law-breakers, subject to numerous statutes in local, state and federal law.

The Judge ruled that the law prosecutors relied on was simply too vague to be constitutional, and that free speech needed to be protected as well as children's safety. In fact, judges have repeatedly ruled that "decency" acts and statutes prohibit all discussion of certain kids of subjects are against the law.

Critics of the ruling argued that this wasn't a free speech issue, merely an encouragement to pedophiles. But like it or not, restrictions on discussion of sexuality does relate to freedom of speech.

The Contra Costa ruling is a reminder that this is yet another technological issue in urgent need of some coherent discussion, as opposed to the posturing and sensationalizing.

Freedom on the Net is not only constitutionally protected, it is also, by technological evolution and practice, a free culture that almost defies policing. There aren't enough cops on the earth to patrol AOL's chat rooms, let along mailing lists, websites, and global messaging and chat arenas all over the world.

Without question, kids do need to be educated in online safety. The rules are almost shockingly simple: give nobody your phone, numbers, full name or address. Small children ought not be left alone with the Net any more than they're allowed to wander around the mall by themselves.

Instead of banning games and filtering sexual imagery, teachers and parents need to show small children how to be safe online, how to respond to the violent or sexual imagery they may encounter, how to find sites that educational, entertaining and safe.

Is all exposure to sexual imagery dangerous to all kids at all ages? Is some exposure to sexual imagery and discussion safe, even healthy? This society has never figured such questions out, or even addressed them in any sustained way. The explosive growth of the Net practically forces an unconscious civilization to come to terms with reality.

In an era when the Net instantly connects people to all of the archived information in the world, how can reasonable laws be written that protect both children and free speech on the Net? How, for example, are adults interested in sexuality supposed to know the ages of the people they're speaking with in chat rooms? Is discussing sexuality with a teenager a crime? Or does the adult have to harm or intend to harm a minor in some demonstrable way?

From shock radio to cable to movies, magazines and Net chat rooms, American children are growing up with more exposure to sophisticated sexual and other kinds of imagery than any generation that has preceded them.

Is this harming them, and if so, in precisely what kind of ways? If this culture is so dangerous, why is the crime rate among kids dropping so sharply?

America is one of the world's most sexually obsessed and repressed nations, one reason sex sites are among the most visited on the Net, after business, entertainment and sports. Obviously, the sexual interests of U.S. citizens conflict with the puritanical impulses of their elected leaders and religious and moral guides.

Yet like it or not, the Net is breaking down these and other ingrained taboos. The Net has killed off sexual censorship as effectively as it has killed off many other kinds, though many of the country's most powerful institutions are slow to grasp the implications.

The very notion of pornography is a relatively new concept in human history. It came about in Victorian England when researchers from the British Museum dug up the ruins of Pompeii and were stunned to find artworks of all kinds - carvings, vases, paintings - in the ancient Italian city that featured shockingly explicit sexual activity, from oral sex to bestiality. The researchers were amazed to learn that these drawings were displayed all over the homes of Pompeii.

The British decided that women and children were too vulnerable and wanton to see these things, and hid them away in the museum's basement for generations. The idea that sexual imagery is dangerous was born, and soon took root in puritan-settled America.

These ideas need some re-consideration in the Digital Age. Vague laws about decency aren't holding up to the scrutiny of the courts, so children who need education and protection aren't getting any, while the Net-spawned right of access to sexual material for citizens who want it is directly threatened.

If even a fraction of the hysteria about kids, sexuality and the online culture were true, there would be no ambiguity about the dangers to children. There would be clear statistical support for the ongoing hysteria. There isn't.

With the 21st century come some inescapable new realities about freedom and sex. Freedom isn't going to vanish online. Sex is never going back into the closet. And thanks mostly to the federal judiciary rather than legislators sworn to uphold and protect the Constitution, the First Amendment isn't going to be disassembled every time an intractable social challenge involving free speech crops up. If the judges don't see to that, the Internet will.

The biggest issue relating to sex and free speech is out how the two impulses can co-exist with one another in a country that doesn't seem sure if it wants either.

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