Not in front of the children?

Standards of free speech on the internet should surely be set by adults.

Two new books published in the USA - Not in Front of the Children: ‘Indecency’, Censorship, and the Innocence of Youth, by Marjorie Heins, and Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls, compiled by the Electronic Privacy Information Center (1) - provide a valuable resource for those who oppose censorship of the internet.

Not in Front of the Children places today’s debates about internet censorship in a broader historical context, drawing upon a wealth of legal cases to explain how the understanding of free speech has changed. Heins’ theme is how children have been used as a pretext for censorship, a kind of moral shield. Filters and Freedom 2.0 is a collection of pamphlets, polemics and court testimonies on the regulation of internet content.

According to Heins, a key precedent for online censorship was the British case of Regina v Hicklin back in 1868, which established the ‘Hicklin test’ for legal assessment of controversial material. This test holds that material should be outlawed if it might harm its most vulnerable consumers. Since it was first adopted in various countries, the Hicklin test has been moderated as a legal standard - but it still epitomises the thinking behind much of today’s child-based justification for censorship.

Heins explains that when the Hicklin test was conceived, ‘the purpose of obscenity laws was…to prevent immoral literature from falling into the wrong hands, whether they be those of servants, the mentally deficient, women or minors’ (2). The key flaw of the test was best described when a Michigan author was convicted on the basis of it in 1957, and the objection was raised that the ruling would ‘reduce the adult population of Michigan to reading only what is fit for children’ (3). Today, censorship in the name of children continues to patronise adults - by setting a lowest common denominator for freedom of speech in society.

Technology has often been enlisted in the quest to protect the young. In Filters and Freedom 2.0 Christopher Hunter identifies four stages that have been common to most forms of censorship: categorisation, listing, word filtering, and access and distribution control (4). Since these four stages are made possible only by the technical means of reproducing material, laws have traditionally been created that rely for their effectiveness on the limitations of the publishing technology of the era.

These laws run from Church-dictated lists of banned books in the medieval period, which were gradually made unenforceable by the printing press, to the ‘When Harry Met Sally’ law in the USA (named after Meg Ryan’s fake orgasm in the film of the same name), a part of the 1996 Communications Decency Act which mandated that TV pornography be either blocked to non-subscribers or screened at late hours (5).

Such laws are convenient to parents who want assistance in regulating their children’s consumption habits - but they are inevitably frustrated by the next technology that comes along. This is particularly true of the internet, a decentralised communications medium that makes a nonsense of ‘watersheds’ and other child-oriented restrictions. To some parents, accustomed to the security of child-friendly TV schedules, the advent of the internet seemed like a plague of indecency intruding into the family home. But in truth, the internet was merely a reminder that children’s consumption habits are the responsibility of individual parents, not the state.

Arguments that present the pros and cons of internet censorship in purely technical terms reveal a poor understanding of free speech. Court cases on contentious internet material tend to follow a predictable pattern: the plaintiff holds the defendant responsible for internet content - the defendant protests that he cannot technically be held accountable for the content - and expert witnesses (IT buffs) are wheeled in to attest to the internet’s decentralised nature. So the attempted prosecution of the internet portal and search directory Yahoo! by a French court - for hosting auctions of Nazi memorabilia - descended into a technical assessment of internet blocking technology (6).

It is easy to laugh at the inefficiencies and contradictions of filtering software and standards. One study in Filters and Freedom 2.0 reports that websites on aquariums and basketball have been blocked to children (7), while another reveals that filtering software blocked access to a number of US political candidates’ websites during the 2000 presidential election (8).

Another incident, described by Heins, involved a 1970s monologue by US comedian George Carlin that was ruled indecent at the time he performed it. The monologue was published online by the Supreme Court in the 1990s as an appendix to a legal text, after the court had used the original Carlin ruling as a measure of online indecency (9). So the Supreme Court had contravened its own ridiculous law by posting the text online.

Amusing though it is to see such bungled attempts at censorship, the fact that technical methods of internet regulation are still being sought suggests we live in a climate hostile to free speech. Although the internet resists regulation, wherever regulation is technically possible, it tends to be pursued. This results in a situation where free speech online is defined by technical default, rather than by a principled conviction in the right to free expression. As the Electronic Frontier Foundation (10) argues in Filters and Freedom 2.0, filtering systems ‘promote a norm of censorship’ (11).

It is this censorious climate - reflected as much in self-regulation by internet users and the internet industry as in state censorship - that led the American Civil Liberties Union (ACLU) (12) to publish its 1997 pamphlet Farenheit 451.2: Is Cyberspace Burning?. Reproduced in Filters and Freedoms 2.0, the pamphlet argues that although the ACLU had struck a formal blow for free speech by overturning the USA’s 1996 Communications Decency Act, ongoing rating and blocking proposals, often outside the auspices of the state, posed a more insidious threat to free speech.

The pamphlet was critical of self-censorship, describing how makers of filtering software could collude with web browser manufacturers, search engines and government-backed ‘self-rating’ schemes to create a chilling effect upon free speech online - even in the absence of laws directly censoring the internet. But with regard to one form of self-regulation, the pamphlet’s criticisms were qualified, claiming that ‘user-based blocking programs…are far preferable to any statute that imposes criminal penalties on online speech’ (13).

This concession was lambasted by Stanford law professor Lawrence Lessig - who argued in his excellent 1999 book Code and Other Laws of Cyberspace that filtering opted for by internet users is dangerously ‘non-transparent’. ‘If there is speech the government has interest in controlling’, said Lessig, ‘let that control be obvious to the users. Only when regulation is transparent is a political response possible’ (14).

Lessig’s views were borne out most dramatically not in the USA, where self-regulation still revolves largely around market products and public institutions such as libraries, but in the UK, where internet service providers remove content from the web on the advice of industry watchdog the Internet Watch Foundation (IWF) (15). This kind of censorship operates at the technical level of web hosting and internet access provision, and its effects have been dramatic - according to some accounts, the IWF’s censorship powers outstrip those of the British state 400-fold (16).

Proposed internet censorship has met with far more resistance in the USA then it has in Europe, which can be attributed to the robust US tradition of First Amendment rights (17) and the different culture that results from it. Not in Front of the Children criticises Liberty (18), the UK’s most prominent civil liberties organisation, for not only championing self-regulation, but allowing the Internet Watch Foundation to claim it as a supporter.

But if there is a flaw in the arguments of US free speech campaigners, it is over-reliance on instances where allegedly worthy material, such as safe sex advice, has been hamfistedly censored by internet content controls. The idea here is that material that might benefit children fails to reach them, a complaint often made with reference to the restricted First Amendment rights enjoyed by children. Heins adopts this argument repeatedly in Not in Front of the Children, and the argument is also used by the ACLU and others in Filters and Freedom 2.0.

This is a weak argument, because it avoids the harsh truth at the heart of free speech. The right to free speech means defending all speech - even when it appals us - as reflected in the ACLU’s proud tradition of tackling even the most difficult free speech disputes. To flag up examples of speech that is both sexually explicit and morally worthy, as an argument against censorship of explicit material, is to reduce the debate around censorship to mere moralism.

It is true that child development benefits from exposure to different influences - and children are more robust than is often assumed by proponents of regulation. Heins has a point when she says that ‘much patently offensive or indecent expression not only does not harm minors but is likely to enlighten them’ (19). But ultimately, the case for free speech is not assisted by the notion of children’s rights. It is adults who should enjoy the unconditional right to free speech - and it is adults who should decide what their children consume.

The question of whether or not something should be censored has nothing to do with its hypothetical effect upon children, whether that effect is said to be positive or negative. Those who believe in free speech would do well to remember this, as increasingly subtle forms of regulation encroach upon the internet.

Sandy Starr has consulted and written on internet regulation for the Organisation for Security and Cooperation in Europe, and for the European Commission research project RightsWatch. He is a contributor to Spreading the Word on the Internet: Sixteen Answers to Four Questions, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 576 KB)); From Quill to Cursor: Freedom of the Media in the Digital Era, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 399 KB)); and The Internet: Brave New World?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)).

(1) See the Electronic Privacy Information Center website

(2) Not in Front of the Children: ‘Indecency’, Censorship, and the Innocence of Youth, Marjorie Heins, p29

(3) Not in Front of the Children: ‘Indecency’, Censorship, and the Innocence of Youth, Marjorie Heins, p61

(4) Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls, Electronic Privacy Information Center, p40

(5) See Not in Front of the Children: ‘Indecency’, Censorship, and the Innocence of Youth, Marjorie Heins, p190

(6) For a commentary on this court case, see Defending the indefensible online, by Sandy Starr

(7) Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls, Electronic Privacy Information Center, pp148-149

(8) Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls, Electronic Privacy Information Center, pp91-96

(9) Not in Front of the Children: ‘Indecency’, Censorship, and the Innocence of Youth, Marjorie Heins, pp159-160

(10) See the Electronic Frontier Foundation website

(11) Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls, Electronic Privacy Information Center, p65

(12) See the American Civil Liberties Union website

(13) Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls, Electronic Privacy Information Center, p109

(14) Code and Other Laws of Cyberspace, Lawrence Lessig, Basic Books, pp178, 181. Buy this book from ”>Amazon (USA)

(15) See the Internet Watch Foundation website

(16) See ‘Oppression net’ by Chris Ellison, Economic Affairs, March 2000. Click here to download a copy of this article in .pdf format

(17) See the
Bill of Rights

(18) See the Liberty website
(19) Not in Front of the Children: ‘Indecency’, Censorship, and the Innocence of Youth, Marjorie Heins, p175

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