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INDECENCY: The Ongoing American Debate

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INDECENCY: The Ongoing American Debate Over Sex, Children, Free Speech, and Dirty Words

©1997 Marjorie Heins, all rights reserved


Marjorie Heins is the author of Sex, Sin, and Blasphemy: A Guide to America's Censorship Wars, and was one of the lawyers representing the plaintiffs in Reno v. American Civil Liberties Union, the successful First Amendment challenge to the 1996 Communications Decency Act.


RENO V. AMERICAN CIVIL LIBERTIES UNION: A CAUTIONARY TALE

Would a child or teenager be harmed by reading the Broadway play Angels in America? Viewing erotic Indian sculptures "of couples copulating in numerous positions "?1 Reading about female genital mutilation?

These were some of the questions that arose in a Philadelphia courtroom in the spring of 1996 as three federal judges heard testimony about the effects of the "Communications Decency Act," a law that criminalized the display of "indecent" computer communications if they might be viewed by a person under 18. Angels in America, as one of the three judges, Dolores Sloviter, wrote, "concerns homosexuality and AIDS portrayed in graphic language" which "may be far less acceptable in smaller, less cosmopolitan communities of the United States"2 than in New York City; it could therefore be considered "indecent" under the new law.

Judge Sloviter's example was not far-fetched, for the Communications Decency Act, or CDA, defined "indecency" as any expression that, "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The American Civil Liberties Union, the American Library Association, Human Rights Watch, the Safer Sex Web Page, and several dozen other groups that filed suit challenging the law presented Judge Sloviter and her colleagues with a multitude of other examples of online speech about human sexuality, reproduction, or "excretory activities or organs" that could be considered "patently offensive" according to some "contemporary community standards."

Congress's ostensible concern in passing the CDA was, of course, to bar minors from access to online pornography, not Angels in America or National Geographic photos of erotic Indian sculptures. But Congress had chosen a standard for censorship, "indecency," that by its terms took no account of what educational or other value a communication might have, and that made no attempt to limit the law's coverage to prurient or pornographic material. Moreover, it simply assumed, as indeed the Supreme Court occasionally has done, that "indecent" speech harms minors and therefore that the sweeping restrictions of the CDA were justified by what in constitutional law jargon is called a "compelling state interest."

This "compelling interest" in "protecting" minors from crude or sexual speech has long been a self-evident proposition for those defending anti-"indecency" laws, and even for many critics of statutes like the CDA. So much so that the Justice Department lawyers in the CDA case (ultimately to be remembered as Reno v. ACLU) understandably threw surprised looks at the ACLU's attorneys when they argued to the three-judge court in Philadelphia that the government had the legal burden of proving not only that the sweeping criminal prohibitions of the CDA were necessary to accomplish the law's purpose in protecting minors, but that "indecent" speech harmed them in the first place.

The Philadelphia three-judge court struck down the CDA; the government of course appealed, arguing to the Supreme Court among other things that the "patently offensive ... contemporary community standards" definition meant only -- or at least mostly -- "pornography," so that producers of safer sex Web pages or gay rights bulletin boards did not really have to worry. The Justice Department lawyers added that explicit speech about sex had only marginal constitutional protection to begin with, so that the CDA's effect on speech need not be scrutinized too strictly -- certainly, no proof of a "compelling state interest" was necessary.

In view of the Supreme Court's previous and in fact quite recent pronouncements on the subject, the government's arguments were hardly without precedent. Indeed, given the nation's continuing "obsession with sin and vice," to quote the subtitle of sociologist David Wagner's recent book,3 the Court's rejection of virtually all of the government's arguments in its sweeping June 26, 1997 Reno v. ACLU decision was remarkable. Although acknowledging that "we have repeatedly recognized the governmental interest in protecting children from harmful materials," the opinion by Justice John Paul Stevens for the Court highlighted the fact that terms like "indecent" and "patently offensive" are so expansive and indeterminate as to threaten with criminal prosecution "serious discussion about birth control practices," homosexuality, prison rape or safer sex, in addition to "artistic images that include nude subjects," and "arguably the card catalogue of the Carnegie Library."4 "Under the CDA," wrote Justice Stevens,

a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate, could face a lengthy prison term. ... Similarly, a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community, found the material 'indecent' or 'patently offensive,' if the college town's community thought otherwise.5

The Supreme Court in Reno thus recognized what the mass media in the United States by and large had not: that Congress in the CDA quite deliberately chose to censor a range of sexually explicit speech that went well beyond "cyberporn" or "smut," whatever those headline-friendly terms may denote in the minds of readers and listeners.

It remains to be seen whether Reno v. ACLU will prove an idiosyncratically broad response to a badly drafted law, or whether its recognition of the positive value of at least some speech about sex, even for minors, will mark the beginning of a long-overdue process of actually examining the presumption that sexual explicitness or crude language is intrinsically harmful to the young. Until that conversation seriously takes place, the American polity will continue to experience heated debates about censorship of sexual speech, whether through direct prohibitions or convoluted rating and blocking schemes. And the generalized and emotional rhetoric that characterizes these debates will continue to make difficult any dispassionate consideration of policy issues like media literacy, pregnancy prevention, or sex education.


SEX, CENSORSHIP, AND THE CIRCULARITY OF LEGAL HISTORY

There is an ironic circularity to the history of laws purporting to protect minors from sexual speech. When Congress, the states, and inevitably the courts, began to regulate sexual expression in the 19th century, they looked naturally enough to Britain, which had no First Amendment but which did have a legal test to define criminally punishable "obscenity." The test derived from an 1868 decision called Regina v. Hicklin, and asked "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."6 Those presumptively included in this weakminded category included youth, the lower classes, and women; as Lord Cockburn, the author of Hicklin, explained, the pamphlet deemed obscene in that case (an anti-clerical tract titled "The Confessional Unmasked") "would suggest to the minds of the young of either sex, and even to persons of more advanced years, thoughts of a most impure and libidinous character."7

Censorship of sexual speech was thus from the outset premised on the supposed need to protect the young from "corrupting" and "immoral" influences. A scholar summarized: "for the next ninety-one years" after Hicklin, "literature in England and for almost as long in America was subject to a control designed to preserve the innocence or ignorance of a hypothetical adolescent girl, and at times it would seem, a feeble-minded one."8

Some American judges, bridling at a censorship standard geared toward protecting vulnerable youth at the expense of everyone else, found ways to narrow Hicklin. Thus, in time, suppressed books like James Joyce's Ulysses, Radclyffe Hall's lesbian classic, The Well of Loneliness, Voltaire's The Philosophical Dictionary, works by Fielding, Rabelais, Ovid, and Boccaccio, and high-minded sex-and-marriage manuals were freed by U.S. judges.9 At the same time, Hicklin remained the legal standard, and in consequence American courts upheld bans on Theodore Dreiser's An American Tragedy and Edmund Wilson's Memoirs of Hecate County, among other distinguished works.10

It was not until 1957 that two Supreme Court decisions finally interred Hicklin. In the more celebrated, Roth v. United States, the Court ruled that although "obscenity" is not protected by the First Amendment because it is "no essential part of any exposition of ideas" and is "utterly without redeeming social importance," sex itself is "a great and mysterious motive force in human life," so that its exploration in art, literature, education, and science is constitutionally protected.11 Only expression that, taken as a whole, primarily appeals to the "prurient interest" can be banned; works with "redeeming social importance" by definition are not obscene, even if isolated passages might be thought to "deprave and corrupt" those who are young, feeble, or sensually inclined.

The other, less noted, 1957 decision took even more direct aim at Hicklin. Butler v. Michigan was a blissfully short decision that memorably made its point. Striking down a Michigan law criminalizing the sale of "obscene, immoral, lewd or lascivious" materials that "tend[ed] to incite minors to violent or depraved or immoral acts" and that "manifestly tend[ed] to the corruption of the morals of youth," Justice Felix Frankfurter wrote:

The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. ... The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.12

If minors are to be "protected," then, it must be in some manner other than "reducing the adult population" to the grade school level.

The obvious, and prompt, response to Butler was for legislatures to pass narrower laws banning the sale of "harmful" sexual material specifically to minors. When such a "harmful to minors" law came before the Court in 1968 in Ginsberg v. New York, Justice William Brennan crafted a politically shrewd if intellectually dubious justification for upholding it.

The New York law in Ginsberg defined "harmful" to track the then-extant definition for obscenity, that is, for constitutionally unprotected speech. That definition derived from the 1957 decision in Roth (material whose dominant appeal is prurient and which is "utterly without redeeming social importance"), as modified by the 1966 Fanny Hill case (Memoirs of Woman of Pleasure v. Massachusetts), which added to Roth a third requirement: that the material be "patently offensive because it affronts contemporary community standards relating to the description of sexual matters."13 The law under which Mr. Ginsberg was convicted thus banned the sale to a person under 17 of any work that appealed to the prurient interest of minors, that utterly lacked redeeming value for minors, and that depicted sex in a manner deemed "patently offensive" for minors. The New York legislature had justified its passage as an attempt to stop sexual materials from "impairing the ethical and moral development of our youth."14

Justice Brennan's opinion for the Supreme Court in Ginsberg readily acknowledged that there was no scientific basis to believe that sexual expression harmed minors, and thus no proven "compelling state interest" to justify the law. But, Brennan said, since the law reached only constitutionally unprotected material (that is, "obscenity"), no such proof was necessary.15

The intellectual sleight-of-hand accomplished here was considerable. In the Roth case, the Court had said that there was a line between "obscenity" and constitutionally protected speech about sex. The line was difficult to draw, the definitions were hazy, and the Court continued to modify them. But, at least theoretically, there was a line. Now in Ginsberg, Justice Brennan said the line was "variable" -- not only because different judges' or juries' standards of "patent offensiveness" or "redeeming social value" will vary, but because when it comes to minors, the obscenity test itself varies. That is, works fully protected by the First Amendment nonetheless lose that protection when minors are involved."

Brennan's legal gymnastics in Ginsberg were of course necessary to the result: upholding "harmful to minors" laws without requiring the government to meet the "compelling state interest" test or indeed to prove that sexual expression has any damaging impact on the young. But perhaps the most remarkable aspect of Ginsberg was its acceptance of the suggestion, attributed to a psychiatrist, that although pornography is "'unlikely to be per se harmful,'" it should be banned as a symbolic gesture. That is, "'[t]he child is protected in his reading of pornography by the knowledge that it is pornographic, i.e., disapproved.'"16

This was an odd point for a Supreme Court Justice, certainly one as libertarian in his instincts as William Brennan, to have acknowledged, because ordinarily in First Amendment cases, one thing that the government is not allowed to do is censor speech that does not cause provable, direct harm, simply in the name of morality or ideology. Yet as the history of obscenity and indecency law demonstrates, the Supreme Court has made an implicit exception to this principle when the subject is sex.

"Variable obscenity" à la Ginsberg relieved the government of having to prove harm, but it failed to satisfy many on the more censorious end of the political spectrum. For under Ginsberg's modified version of the Supreme CourtÕs three-part obscenity test, works that could be banned for minors still had to be not only "patently offensive" but "prurient" and lacking in virtually any redeeming "value." The first requirement, offensiveness, was nicely flexible and vague, but the other two, prurience and lack of value, meant that many works would be freely available, even to youngsters, despite their vulgarity or explicit sexual content. A case in point was the famous "Filthy Words" comic monolog that led to the next major Supreme Court decision on children and free speech.

Federal Communications Commission v. Pacifica began in 1973 with a complaint to the FCC that Pacifica radio's New York City affiliate, WBAI, had aired during the mid-afternoon a manic comic routine by George Carlin, the so-called "Filthy Words" monolog , which surveyed with hilarious abandon the many connotations of the seven naughty words that one supposedly "couldn't say on the public airwaves." As Carlin explained, these seven words -- fuck, shit, piss, cunt, tits, cocksucker, and motherfucker ­ "are the ones that will curve your spine, grow hair on your hands and maybe even bring us, God help us, peace without honor."

The FCC, which had authority to enforce a statute prohibiting obscene or "indecent" expression on radio, responded to the Pacifica complaint by announcing that henceforth "indecency" meant "the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience."17 The agency decided that the seven vulgar words in the Carlin monolog were indecent under this definition, and thus banned them from the airwaves at any time when children might be listening.

The "patently offensive ... contemporary community standards" portion of the FCC's "indecency" formula obviously came from the Supreme Court's obscenity cases. But conspicuously absent were the elements of prurience and lack of value that the Court had originally said in Roth characterized obscene material and justified depriving it of First Amendment protection. A 1973 decision, Miller v. California, had changed Roth's "utterly without redeeming social value" to a looser test -- "lacking serious literary, artistic, political, or scientific value" -- but the Court had stuck by its basic premise that if speech has "value," it is protected by the First Amendment, and cannot be suppressed as "obscene." The FCC's Pacifica ruling was a radical departure from this principle because the Carlin monolog was obviously not "obscene" -- it was hardly "prurient" and it arguably had serious literary and political value. Unlike "obscenity," the monolog unquestionably had First Amendment protection.

The courts at first smiled upon Pacifica's appeal of the FCC's ruling. The U.S. Court of Appeals for the District of Columbia Circuit agreed that at the very least, the FCC had gone beyond its jurisdiction. "The Commission's Order is a classic case of burning the house to roast the pig," wrote one of the circuit judges; under the FCC's indecency standard, passages from Shakespeare and the Bible could not be broadcast, in addition to "works of Auden, Beckett, Lord Byron, Chaucer, Fielding, Greene, Hemingway, Joyce, Knowles, Lawrence, Orwell, Scott, Swift and the Nixon tapes." 18

But the Supreme Court was not persuaded. Reversing the circuit's ruling by a 5-4 vote, it ruled first that "indecency" did not need to be equated with "obscenity" In earlier cases involving laws that contained a laundry list of seemingly redundant prohibitions (lewd, lascivious, filthy, indecent, obscene), the Court had interpreted them all to mean "obscene" -- that is, not protected by the First Amendment. But in Pacifica, five of the nine justices allowed a more spacious definition for "indecency" because, they said, broadcasting is peculiarly invasive, is "uniquely accessible to children, even those too young to read," and has since its inception been regulated more heavily than other media. Justice John Paul Stevens's lead opinion added that the FCC was not really banning vulgarity but only channeling it to times when children are unlikely to be listening (this of course meant late-night hours only), and that in any event, adults who want indecency can find it at their local nightclub or record store.19 Justice Lewis Powell, although differing with Stevens on the question whether dirty words "lie at the periphery of the First Amendment" (Stevens thought they did), nevertheless agreed that "shocking" and indecent speech "may have a deeper and more lasting negative effect on a child than on an adult."20 Powell cited no authority for this proposition; he simply asserted that "the language involved in this case is as potentially degrading and harmful to children as representations of many erotic acts."21

At bottom Pacifica presented a political problem. Unlike books and magazines, radio and television messages are not tangible things that can be distributed or not to customers depending upon whether they appear to be adults. Broadcasting does not exactly "invade" the home, but it is ubiquitous; and parents who care about the point probably cannot prevent their children from hearing "indecent" speech if the producers choose to air it. As a practical matter, the broadcast industry at the time of Pacifica had internal standards that made sex or even vulgar language highly unusual and thus more shocking when heard on the air than in the saloon or schoolyard. Pacifica radio was pushing the proverbial envelope, and the result was one of the most disturbing of First Amendment rulings since the Supreme Court had upheld the criminal convictions of Communist Party leaders for advocating Marxism almost 30 years before.

Justice Brennan, who ten years earlier in Ginsberg had introduced the idea of "variable obscenity" as a way to dispense with the usual "compelling interest" test in "harmful to minors" cases, dissented furiously in Pacifica. As his (and Justice Powell's) language showed, this was a debate about personal values at least as much as constitutional law. Brennan fumed:

As surprising as it may be to some individual Members of this Court, some parents may actually find Mr. Carlin's unabashed attitude towards the seven 'dirty words' healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words. Such parents may constitute a minority of the American public, but the absence of great numbers willing to exercise the right to raise their children in this fashion does not alter that right's nature or its existence. Only the Court's regrettable decision does that.22

Pacifica was in an important sense a regression, backwards from cases like Butler and Roth, backwards even from the "variable obscenity" of Ginsberg. An agency of the U.S. government was now empowered to ban constitutionally protected speech, on a theory that subordinated the rights of adults to the 19th century logic of Regina v. Hicklin.

The FCC at first used its censorship power mainly to police dirty words. But pressure was mounting through the Reagan years to contain the more daring, and increasingly popular, segments of radio entertainment that were quickly demolishing the broadcast industry civilities of pre-Pacifica days. In 1987, under pressure from Morality in Media and the National Decency Forum, the agency announced that abjuring Anglo-Saxon vulgarisms would no longer save broadcasters from sanctions; henceforth, any "sexual" or "excretory" subject matter, including innuendo and double entendre, might be punished through hefty fines and threats of license revocation. The 1987 announcement illustrated the range of speech now at risk: it simultaneously proclaimed indecent a series of Howard Stern dialogs on such subjects as sexual body parts, erections, vibrators, and sodomy (example: "I was sodomized by Lambchop, you know, that puppet Sherri Lewis holds"), a university radio broadcast of a song called "Makin' Bacon" (example: "Come here baby, make it quick/Kneel down there and suck on my dick"), and excerpts from a stage play about homosexuality and AIDS, presented by Pacifica's Los Angeles affiliate (example: "I'll give you the gentlest fuck west of the Mississippi").23 In the next decade, the FCC issued indecency rulings against Chicago's "Steve and Garry" talk show for a discussion of Vanessa Williams's nude photo spread in Penthouse;24 against a St. Louis station for a conversation about the Reverend Jim Bakker's alleged rape of Jessica Hahn;25 and against Howard Stern, repeatedly, for his jokes about penis size, bathroom functions, and myriad related matters, including Pee Wee Herman's 1991 arrest for masturbating in a movie theater.26

The FCC's reasoning in these cases was opaque. The agency had insisted in 1987 that "merit" was only one factor in judging indecency; likewise, in the 1990 Jessica Hahn matter, it said newsworthiness was "simply one of many variables."27 When Pacifica sought FCC advice on whether it could broadcast the celebrated Molly Bloom soliloquy in Ulysses as part of its annual Bloomsday celebration, the agency refused to answer -- for fear, it said, of imposing a "prior restraint on expression."28

For a combination of political and bureaucratic reasons, no broadcaster managed to obtain court review of any of these specific FCC rulings. But the agency was repeatedly being sued over the vagueness of its indecency standard and the parameters of its "safe harbor" rules delineating the late-night hours when indecent speech could be aired. The U.S. Court of Appeals for the D.C. Circuit three times rejected safe harbor plans, and at one point questioned the agency's expansion of its concept of minors from those under 12 to those under 18. But at last in 1995, the court upheld the FCC scheme, with four dissenting judges remarking ruefully on the total absence of evidence "regarding the magnitude of psychological or moral harm, if any, to children and teenagers who see and hear indecency."29

Congress meanwhile, relying upon the green light it saw reflected in Pacifica, began applying the indecency standard to other media. The Supreme Court invalidated a law banning "indecent" telephone services in a 1989 case called Sable Communications,30 but in the process remarked that government does have a "compelling interest" in barring minors from offensive sexual speech. The record in the case contained no evidence suggesting what harm would be caused, nor did the Court rely on psychological literature. Instead, it simply cited its 1968 decision in Ginsberg. But Justice Brennan had crafted Ginsberg on the explicit premise that "variable obscenity" was not constitutionally protected, whereas indecency was. And this was no trivial legalism, for "variable obscenity"'s lack of constitutional protection meant that the government could suppress it without producing evidence of harm. Sliding noiselessly from "variable obscenity" (Ginsberg) to "indecency" (Pacifica and Sable), the Court for the first time suggested that government need not prove a compelling interest, or indeed any need, for laws censoring a broad range of "offensive" speech if the asserted justification was "protecting minors."

Four justices repeated this casual assumption in a June 1996 case involving a convoluted cable TV indecency law. Although invalidating most of the law because not necessary to protect minors, the four justices opined that government does have a "compelling" need "to protect children from exposure to patently offensive sex-related material."31 The pronouncement came, ironically, just a few months after the three judges in the Communications Decency Act case in Philadelphia had found that there was plenty of "indecent" speech that not only would not harm minors, but might even educate or enlighten them. In addition to the examples mentioned by Judge Sloviter, the plaintiffs in Reno v. ACLU had testified about the online availability of art, literature, and political discussions that might be valuable to teenagers, as well as the importance of conveying safer sex information to them in comprehensible street language.

Given this history, the Supreme Court's June 26, 1997 ruling in Reno was remarkable, particularly so because it was John Paul Stevens, the author of Pacifica, who wrote an opinion for seven of the nine justices affirming for the first time since the Roth case 40 years earlier that much sexually explicit speech might have positive social value. Not only art, literature, political debate, and birth control information might have been "indecent" under the CDA, but as Justice Stevens noted twice (no small irony given his authorship of Pacifica), the very Appendix to the Pacifica opinion, containing the text of George Carlin's "Filthy Words" monolog, would almost by necessity be "indecent" under the CDA as it was under the FCC ruling from which the legal concept of indecency sprang.


THINKING ABOUT HARM

Justice Stevens's opinion in Reno v. ACLU assumed that art, literature, safer sex information, descriptions of prison rape, and teenage discussions of birth control, would not be harmful to minors, but he steered clear of mentioning the testimony of the ACLU's expert witness, Baptist minister and psychologist William Stayton. Stayton, a former chief of Family Life and Sex Education at the University of Pennsylvania, had testified that explicit sex information, and even pornography, do not by themselves cause psychological harm to minors of any age, and that his views are in the mainstream among sex educators. The government lawyers did not put on a medical expert to contradict Dr. Stayton, instead confining themselves to a more ideological style of cross-examination regarding whether pornographic images "depict a healthy view of women as sexual beings" or "socialize minors" to see women as sex objects.

Government lawyers did present a psychological expert in a less-noticed case in 1996. This suit, Playboy Entertainment Group v. United States, involved another section of the CDA, which banned (or consigned to late-night hours) audio or visual "signal bleed" of sexually explicit cable television channels to homes that had not ordered them. The government's expert, child psychologist Diana Elliott, testified that a study done at her child abuse crisis center at UCLA indicated that children who had seen pornographic television shows were more likely to engage in "sexually reactive" behavior, such as "orally copulating with another child" or "inserting an object" into their own anus or vagina or that of another child. Here, apparently, was some evidence of physical harm, but the three-judge court rejected Dr. Elliott's testimony, citing "concerns regarding the reliability of her methods and conclusions. Her results strike us as anecdotal and possibly misleading."32

This court nevertheless upheld the "signal bleed" law. It satisfied itself on the question of harm by quoting the then-recently decided Supreme Court cable TV case, and the politically contentious 1986 Report of the Attorney General's Commission on Pornography (the Meese Commission) for the proposition that pornography "is not the best way for children to learn about" sexuality. The judges added: "We believe that the danger of prematurely exposing children to video and audio transmissions of graphic adult sexual behavior is even more troublesome than the exposure to offensive language that was at issue in Pacifica."33 Having disclaimed the government's expert, the court had no authority to cite for its beliefs, but was probably correct to assume that many American adults would agree.

The Playboy court's reliance on its own moral judgments, and on a much-criticized anti-pornography report from former Attorney General Meese, was in one sense an insult to the usual processes of legal reasoning and proof, but it was also typical of judicial decisionmaking in this area. At least since the Ginsberg Court's suggestion that moral symbolism was sufficient basis to jail people for disseminating sexual material to minors, courts have talked of harm in terms of "the ethical and moral development of our youth" (Ginsberg), of the "deep and ... lasting negative effect" of vulgar words (Justice Powell in Pacifica), and of pornography's not being "the best way for children to learn about sex" (Playboy). The articulated concerns have thus traditionally been moral and ideological, not psychological. Interestingly, even when physicians and psychologists discuss harm, it is also primarily in terms of values and attitudes ­ "bad ideas" that minors may glean from pornography, racy language, or more frequently, mainstream movies and TV.

But if it is ideology at bottom that drives laws "protecting" minors, the fact is not often explicitly acknowledged. Instead, at least since the early 1980s, social scientists and some political leaders have asserted that empirical studies do demonstrate the ill effects of both pornography and violence in the media. The problem with these assertions is that the concepts of both "harm" and "evidence" in the social science world are troublesome for legal purposes. Social science studies, whether conducted in the laboratory, in the field, on one occasion, or over time, have neither the rigor and exactitude of hard science nor the degree of certainty usually recognized as legal proof by courts. As pediatrician and professor of adolescent medicine Victor Strasburger has written, Òsocial science research is far from perfect, and asking for the type of scientific proof analogous to Group A streptococcal bacteria causing acute rheumatic fever may be foolhardy and may represent a misreading of what social science can accomplish.34

That is to say, even if social science had produced the same volume of studies on sexual speech's effects on minors as it has produced in the context of media "violence" (it has not), this is not the type of evidence that is ordinarily persuasive in a court of law. Some of the violence studies do show statistically significant, if small, correlations between aggressive or anti-social attitudes or conduct and the quantity of violent films or TV shows that people in the study have consumed. But there are so many variables -- including how the experimenters define concepts like violence, aggression, and anti-social conduct -- that using the studies as evidence to justify government restrictions on particular films or books would be highly problematic. Where courts have allowed infringements on free speech, the proven harm is usually much more direct, focused, and finite. Examples include evidence that a particular speech directly incited violence, or that a particular defamatory statement directly harmed an individual's reputation.

Social science evidence generally consists of correlations between media content and viewer attitudes or behavior. In the research on sexually oriented media, for example, one 1981 experiment asked 75 adolescent girls, half of them pregnant, about their television viewing habits. It turned out that the pregnant ones watched more TV soap operas and were somewhat less likely to think that their favorite soap opera characters would use contraceptives.35 Another study found that of 391 junior high school students, those who watched sexier TV shows were more likely to have become sexually active in the preceding year.36 The implication of both studies is that television teaches reckless attitudes about sexual behavior, but it is at least equally likely that the more sexually adventuresome (or irresponsible) youngsters were drawn to the racier shows. The American Academy of Pediatrics (AAP) asserts that American teenagers "see an estimated 14,000 sexual references and innuendoes per year on television," of which only 150 "deal with sexual responsibility, abstinence or contraception."37 Yet the AAP acknowledges that social science studies in this area are scarce, and that "there is no clear documentation that the relationship between television viewing and sexual activity ... is causal."38

Of course, even if such a relationship were proven -- that is, if the many other real-world causes of adolescent sexual behavior were successfully filtered out and it could be shown that reckless ideas in the mass media had a measurable causal relation to unsafe or too-early sex among teens ­ "indecency" laws would do little to remedy the problem. For the irresponsible sexual messages on TV sitcoms, action shows, and daytime soaps are for the most part not graphic enough to meet the courts' "indecency" definition.

When, by contrast, researchers look at the effect of specifically pornographic material, they rarely focus on minors, for ethical reasons; and the little research that does exist suggests that exposure to erotica is not a factor in juvenile misbehavior. A 1991 field study of juvenile sex offenders, for example, reported that although most of them had seen pornography, the primary causes of sexual offenses among these adolescent boys were their own histories of physical and sexual abuse.39

Given this paucity of evidence, the most that those defending the Communications Decency Act of 1996 were able to muster on the question of psychological harm (in a friend-of-the-court brief filed with the Supreme Court by the "Enough is Enough" campaign and other groups) were references to a pamphlet by psychologist Victor Cline that described clinical cases of men "addicted" to pornography who preferred its masturbatory effect to actual lovemaking, and that added: "in my clinical work, I find pre-teen or adolescent males ... particularly vulnerable to these negative and addictive effects."40 Dr. Cline's pamphlet offered no statistics or studies indicating whether his observations about these adolescent males were more than random. The remainder of the "harm" section in the Enough is Enough brief returned to familiar arguments about values and attitudes, asserting, for example, that pornography "is a powerful but deforming tool of sex education," and "encourages neither tenderness nor caring" in sexual relations.41

Clinical evidence like Dr. Cline's is too idiosyncratic to be considered scientific proof. As sex educator Michael Carrera has commented, "researchers would have a field day" with conclusions drawn from a handful of case studies; one needs to "know so much more about what makes a person whole."42

For example, while some adolescents may become "addicted" to pornography, most will not. While some children may be frightened (or unduly aroused) by explicit sexual material, others will simply be uncomprehending or bored. Two scholars observed recently that the same media content "may create nightmares for one child and be the source of coping skills for another."43 As a little-known 1986 report by the Surgeon General's Workshop on Pornography and Public Health noted, many psychologists believe that young children are not affected by pornography because they lack "the cognitive or emotional capacities needed to comprehend" it.44 Teenagers, by contrast, are highly sexual beings who hardly need the media to give them ideas. Dr. Strasburger points out that this is a large part of what makes adults so nervous about them.45

Yet another problem with anecdotal clinical evidence is that "pornography," a genre generally characterized by prurience, cannot simply be equated with "indecency," which need not have prurient appeal. The lack of precise definitions in the area of indecency and harm thus undermines any attempt even to know what we are talking about. Vulgar words, for example, found indecent by the FCC and the Supreme Court in the Pacifica case, are hardly the equivalent of pornography, and adult attitudes toward allowing minors to hear them are based almost purely on standards of morality and etiquette. Even scatological subjects and sexual body parts are well within children's natural curiosity, which does not need to be stimulated by the likes of George Carlin. Psychologists (not to mention parents) have long been aware that sexual and bathroom humor among children is normal and common.46

Popular parenting books generally encourage sexual discussions with children. The Portable Pediatrician's Guide to Kids notes that masturbation is normal and that "talking about sex between parent and child is a way of 'immunizing' a kid from some of the fallout of our oversexualized culture."47 You and Your Adolescent - A Parent's Guide for Ages 10-20 explains that "sexual desires and fantasies are normal and common,"48 and adds that soft-core pornography, "used as a means of satisfying curiosity, or as an accessory to masturbation, ... will not speed up, slow down, or otherwise disrupt a young person's sexual development."49 But it does caution that hard-core pornography (defined as "magazines and books with graphic pictures or descriptions of people violating sexual taboos") is "not appropriate for young teenagers" because it "links sex to aggression (sado-masochistic imagery is common), distorts male-female relationships (nearly always men are portrayed as dominating women, and women as accepting and even enjoying this), ignores intimacy (love is confused with lust and obsession), and presents an unrealistic picture of sexual behavior (unconventional sex acts and fetishes greatly outnumber more conventional forms of arousal)."50 All this may well be true, but as in the medical literature about television, as in the government's cross-examination of Dr. Stayton, the essential concern here is not psychological harm per se, but the effect on attitudes and possible behavior of disapproved ideas.

The 1986 Meese Commission, whose mission was widely understood to be the collection of empirical evidence of harm from pornography, candidly concluded with regard to minors that the harm "must be seen in moral terms." It explained: "Issues of human dignity and human decency, no less real for their lack of scientific measurability, are for many of us central to thinking about the question of harm. ... For children to be taught by these materials that sex is public, that sex is commercial, and that sex can be divorced from any degree of affection, love, commitment, or marriage is for us the wrong message at the wrong time."51

The Meese Commission itself thus acknowledged that the perceived harm to minors from sexual speech is fundamentally moral. But this acknowledgment highlights the constitutional problem with indecency laws, for the First Amendment is premised on the principle that government may not censor ideas because it considers them bad or dangerous. As federal Judge Frank Easterbrook explained in striking down the Indianapolis anti-pornography ordinance authored by Catharine MacKinnon and Andrea Dworkin, and aimed at suppressing words or pictures deemed "subordinating" to women: "any other answer leaves the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us."52

Some judges have sought to modify this constitutional principle in the case of minors. As Justice Powell wrote in Pacifica, children are "not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees."53 But minors do have constitutional rights; older ones especially must learn to think for themselves, and be exposed to controversial ideas in the process. Even in public schools, where local governments have considerable power to inculcate majoritarian values, the Supreme Court has drawn the line at school board actions, like removing library books, that are simply motivated by hostility to "dangerous ideas."54 The notion that the First Amendment permits official censorship frankly aimed at suppressing "immoral" ideas that might influence youngsters is thus constitutionally problematic, at the very least, and in a sense leads us directly back to Regina v. Hicklin.


ARE INDECENCY LAWS INEVITABLE?


The 1970 President's Commission on Obscenity and Pornography (the "Lockhart Commission") concluded that all laws restricting the access of adults to sexual speech should be repealed and, as to minors, reported the absence of any known empirical link between pornography and psychological harm. The Commission nevertheless recommended retaining laws that banned commercial distribution or display of some sexual speech to young people. Its reason was candidly political ­ "a large majority of Americans believe that children should not be exposed to certain sexual materials."55

This recognition of political reality may have lacked intellectual elegance, and majority sentiments are usually not good reasons to override the First Amendment. But the fact is, feelings run so strong in this area that nearly 30 years later, and despite the Supreme Court's recent unanimous rejection of the Communications Decency Act, some sort of government control still seems politically inevitable. Does it make sense, then, to try at least to eliminate the breathtaking vagueness, subjectivity, and overbreadth of the "indecency" standard?

To be sure, it would be an improvement if the "indecency" definition were replaced with one that distinguished between hard-core pornography and explicit sex information not primarily designed for arousal, and that admitted the folly of simply banning naughty words. This, of course, is more or less the line that the Supreme Court has attempted to draw in its obscenity cases, and despite its lack of precision (Justice Potter Stewart's famed "I know it when I see it"56 is hardly a satisfactory legal test), at least obscenity law inquires into the "value" of the speech at issue, rather than exclusively relying on such meaningless terms as "patent offensiveness" and "contemporary community standards." But the political movement over the last 20 years toward the broader, vaguer realms of indecency law suggests that those seeking broader censorship will not easily be persuaded to return to the more speech-protective obscenity test.

If at bottom the harm to minors thought to flow from sexual expression is essentially about their developing values and attitudes, then it is likely that education would in any event be a more effective remedy than indecency or even "variable obscenity" laws. The Lockhart Commission thought it likely that "if adolescents had access to adequate information regarding sex, through appropriate sex education, their interest in pornography would be reduced."57 Professional groups like the American Academy of Pediatrics and the American Psychological Association recognize adolescents' urgent need for information about sex, as well as the wisdom of giving younger children facts about at least the basic plumbing. They want changes in TV programming but also appreciate that the best remedies for high-risk teenage sexual activity are advances in media literacy and detailed sex education, including explicit information about contraceptives.58 Although there are no doubt multiple causes for America's hefty teen pregnancy rate -- higher than any other industrialized country -- one major factor, as Dr. Strasburger notes, is that fewer than 30% of our high schools have any sort of comprehensive sex education. Adolescents are no less sexually active in Europe, but they have access to "far more widespread media discussion and advertising of birth control products."59 As Dr. Carrera laments, the United States has "slipped 30 years" in its approach to sexuality and sex education.60

In the wake of Reno v. ACLU, the focus of punditry has mostly reverted to labeling, rating, and v-chip-like technologies to control minorsÕ access to sexual speech. These are less coercive than criminal laws, to be sure, but they are still premised on the same or similar vague definitions of what is to be controlled, as well as unexamined presumptions about psychological or moral harm to youth. In view of the continuing visceral power of current attitudes about kids and sex, it may be politically naive to think that a more dispassionate approach to ÒindecentÓ or sexually explicit speech is likely to come soon in the United States. But if the damage is thought to come from ÒbadÓ ideas, then giving either government officials or private industry raters the power to identify and suppress them is a dubious undertaking -- rather like asking politicians whether the violence in Schindler's List is gratuitous, or the sex in Tropic of Cancer immoral.

 



1. ACLU v. Reno, 929 F.Supp. 824, 853 (E.D. Pa. 1996).

2. ACLU v. Reno, 929 F.Supp. at 852-53.

3. David Wagner, The New Temperance - The American Obsession with Sin and Vice (1997).

4. Reno v. ACLU, 117 S.Ct. 2329, 2344-48 (1997).

5. Id. at 2348.

6. Regina v.Hicklin, L.R. 3 Q.B. 360, 371 (1868).

7. Hicklin, 3 Q.B. at 371.

8. John Chandos, "Introduction," "To Deprave and Corrupt" - Original Studies in the Nature and Definition of "Obscenity" (1962), pp. 27-28. The approach was still evident in England a century later during the 1960 Lady Chatterley's Lover trial when the prosecutor implored the jurors to consider not only whether they would "approve of your young sons, young daughters -- because girls can read as well as boys -- reading this book," but whether it was the sort of thing they would "even wish your wife or your servants to read." See id. at 37, 148; Charles Rembar, The End of Obscenity (1968), p. 156.

9. See United States v. One Book Called "Ulysses," 5 F.Supp. 182 (S.D.N.Y. 1933), affíd, 72 F.2d 705 (2d Cir. 1934); People v. Friede, 133 Misc. 611, 233 N.Y.S. 565 (NYC Magistrate's Ct. 1929), dismissed at trial by the Court of Special Sessions (The Well of Loneliness); St. Hubert Guild v. Quinn, 64 Misc. 336, 118 N.Y.S. 582 (S.Ct.App. 1909) (Voltaire); In re Worthington Co., 30 N.Y.S. 361 (S.Ct. 1894) (Fielding, Rabelais, Ovid, Boccaccio);United States v. One Obscene Book Entitled "Married Love," 48 F.2d 821 (S.D.N.Y. 1931); United States v. Dennett, 39 F.2d 564 (2d Cir. 1930) (sex manuals) .

10. Commonwealth v. Friede, 271 Mass. 318 (1930) (finding An American Tragedy obscene under Massachusetts law); People v. Doubleday, 297 N.Y. 687, affíd, 335 U.S. 848 (1948) (Memoirs obscene under New York law). See generally Edward DeGrazia, Girls Lean Back Everywhere: the Law of Obscenity and the Assault on Genius (1992); Rochelle Gurstein, The Repeal of Reticence (1996); David Rabban, Free Speech in Its Forgotten Years (1997).

11. Roth v. United States, 354 U.S. 476, 484, 485 (1957).

12. Butler v. Michigan, 352 U.S. 380, 382-83 (1957).

13. Memoirs of a Woman of Pleasure v. Massachusetts, 383 U.S. 413, 418 (1966).

14. Ginsberg v. New York, 390 U.S. 629, 641 (1968).

15. Id. at 639-42.

16. Id. at 642 n.10 (quoting William M. Gaylin, MD, Book Review, "The Prickly Problems of Pornography," 77 Yale L.J. 579, 592-94 (1968)).

17. FCC v. Pacifica Foundation, 438 U.S. 726, 731-32 (1978).

18. Pacifica Foundation v. FCC, 556 F.2d 9, 17 n.19 (D.C.Cir. 1977).

19. FCC v. Pacifica Foundation, 438 U.S. at 741-49.

20. Id. at 757-58 (Powell, J., concurring).

21. Id. at 758 (Powell, J., concurring).

22. Id. at 770 (Brennan, J., dissenting).

23. In the Matter of Infinity Broadcasting, FCC 87-365, 2 FCC Rcd 2698, on reconsideration, 3 FCC Rcd 930 (1987).

24. United States v. Evergreen Media, 832 F.Supp. 1179 (N.D.Ill. 1993).

25. In the Matter of KSD-FM, 6 FCC Rcd 3689 (1990).

26. Sagittarius Broadcasting, Notice of Apparent Liability, 7 FCC Rcd 6873 (1992).

27. KSD-FM, 6 FCC Rcd at 3689.

28. Letter from James C. McKinney, Chief of the FCCís Mass Media Bureau, to William J. Byrnes and John Crigler, attorneys for Pacifica, June 5, 1987.

29. Action for Children's Television v. FCC, 58 F.3d 654, 686 (D.C.Cir. 1995), cert. denied, 116 S.Ct. 701 (1996); see also Judge Edwards's dissent at 671, noting "not one iota of evidence in the record" indicating that "exposure to indecency is harmful."

30. Sable Communications v. FCC, 492 U.S. 115 (1989).

31. Denver Area Educational Telecommunications Consortium v. FCC, 116 S.Ct. 2374, 2386 (1996).

32. Playboy Entertainment Group v. United States, 945 F.Supp. 772, 786 n.25 (D.Del. 1996), affíd sum., 65 USLW 3644 (March 25, 1997).

33. Id. at 786 (quoting Final Report, Attorney Generalís Commission on Pornography, pp. 343-44 (1986)), 788.

34. Victor C. Strasburger, M.D., Adolescents and the Media - Medical and Psychological Impact (1995), p.13.

35. Charles Corder-Bolz, "Television and Adolescents' Sexual Behavior," Sex Education Coalition News, Vol. 3 (Jan. 1981), p. 3; see discussion in Strasburger, Adolescents and the Media, p. 49.

36. Jane D. Brown and Susan F. Newcomer, "Television Viewing and Adolescents' Sexual Behavior," Journal of Homosexuality, Vol. 21, No. 12 (1991), p. 77; see discussion in Strasburger, Adolescents and the Media, p. 49.

37. American Academy of Pediatrics, "Children, Adolescents, and Television," Pediatrics, Vol. 96, No. 4 (Oct. 1995), p. 786.

38. American Academy of Pediatrics, "Children, Adolescents, and Television," Pediatrics, Vol. 96, No. 4 (Oct. 1995), p. 786.

39. Judith Becker and Robert M. Stein, "Is Sexual Erotica Associated with Sexual Deviance in Adolescent Males?" 14 Intíl J. Law & Psychiatry 85 (1991).

40. Victor B. Cline, PhD, Pornography's Effects on Adults and Children (Morality in Media, 1994), p. 15, cited in the Brief Amici Curiae of Enough is Enough et al. in Reno v. American Civil Liberties Union, No. 96-511 (Jan. 21, 1997), pp. 12-13.

41. Brief Amici Curiae of Enough is Enough et al. in Reno v. American Civil Liberties Union, No. 96-511 (Jan. 21, 1997), pp. 11, 10.

42. Author's interview with Dr. Michael Carrera, director of the National Adolescent Sexuality Training Center (Jan. 31, 1997).

43. Aletha Huston and Dolf Zillman, "Media Influence, Public Policy, and the Family," in Media, Children, and the Family (1994), p. 6.

44. Surgeon General's Workshop on Pornography and Public Health (U.S. Dep't of Health & Human Services, June 22-24, 1986) (report prepared by Edward Mulvey and Jeffrey Haugaard), p. 61 (manuscript ed.). The report, although an official publication of the Department of Health & Human Services, is extremely difficult to find. The Surgeon General's Office states that it is "unpublished," and it is not available in most libraries. The reasons may be that its conclusions are tentative and modest, noting, for example, that attitudes and behavior are "[n]ot necessarily linked in a straight causal pathway," id. at 57, and that "[i]n the end, it is really rather difficult to say much definitive about the possible effects of exposure to pornography on children." Id. at 62.

45. Victor C. Strasburger, M.D., Getting Your Kids to Say No in the Nineties When You Said Yes in the Sixties (1993), p. 34.

46. E.g., Martha Wolfenstein, Children's Humor: A Psychological Analysis (1954); Barbara Meltz, "Why Good Children Use Bad Words," Boston Globe, Sept. 24, 1992, & At Home, p. A1.

47. Laura Wather Nathanson, M.D., The Portable Pediatrician's Guide to Kids - Your Child's Physical and Behaviorial Development From Ages 5 to 12 (1996), p. 17.

48. Laurence Steinberg, PhD and Ann Levine, You and Your Adolescent - A Parent's Guide for Ages 10-20 (1990), p. 97.

49. Id., pp. 102-03.

50. Id., pp. 102-03.

51. Final Report, Attorney General's Commission on Pornography (1986), pp. 303, 344.

52. American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 330 (7th Cir.), aff'd mem., 475 U.S. 1001 (1985).

53. FCC v. Pacifica Foundation, 438 U.S. at 757-58.

54. Board of Education v. Pico, 457 U.S. 853 (1982).

55. Report of the Commission on Obscenity and Pornography (Lockhart Commission, 1970), pp. 62-63.

56. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

57. Report of the Commission on Obscenity and Pornography (Lockhart Commission, 1970), p. 33.

58. American Psychological Association, Policy Statements on Children, Youth, and Families - Resolution on Sexuality Education (August 1995).

59. Strasburger, Adolescents and the Media 38-39, 41-43, 51.

60. Author's interview with Dr. Michael Carrera (Jan. 31, 1997).