Legislative Diapers
First, apologies to those of you who, on the basis of the title, were anticipating a column about Strom Thurmond. I don’t want to talk about the literal diapers lawmakers wear, but the metaphorical ones they feel obligated to fasten to the rest of us. Unfortunately for our bargain-basement copies of Plato’s “guardians,” Americans have developed a healthy distaste for governmental attempts to dictate what we may or may not hear, see, and read. Neo-puritans, however, have discovered a chink in the armor of our Constitutional culture, a magic phrase more potent than “abracadabra” or even “by the power of Greyskull.” That’s right, it’s “protect the children.”
Many of us have already developed a Pavlovian gag-response to those three little words, but they remain surprisingly effective. They are the motive force behind CIPA, the Child Internet Protection Act, which rather like the more (in)famous PATRIOT bill, looks like the innocent flower, but is really the serpent under it.
CIPA is currently drawing heavy fire from the ACLU and various cyber-rights groups because it requires libraries receiving federal funding to install filtering software designed to shield minors from potentially “damaging” websites on all of their public computers. Now, whether or not government should be in the business of subsidizing libraries, or public Internet access, the fact is that it does, and will for the foreseeable future. Since this has the effect of crowding out inexpensive market alternatives in sparsely populated areas, many of the less affluent, young and old, must resort to those public terminals as their sole means of Internet access. When Congress uses the power of the purse to impose limits on that access, the restrictions they enact must be subject to the severe test established by the Constitutional protection of free speech. CIPA fails spectacularly.
The most obvious problem with the law is that it relies on crude filtering programs which cannot be counted upon to tell the indecent from the innocuous. Some sites, such as that of a horse-saddle vendor, seem to be blocked arbitrarily, but there are also some disturbing patterns. Sites commonly miscategorized as “obscene” include online art galleries, gay and lesbian sites, pages containing information about safe-sex or reproduction, and, perhaps most ironically, an anti-child-porn coalition’s home page. Worse still, the full lists of blocked sites these programs use are valuable proprietary information, and therefore secret. So secret, in fact, that the makers of one such program had the public shooed out of the court in which a challenge to CIPA was being mounted, lest their blocking methods be revealed.
This is already sufficient grounds on which to strike down CIPA. Even legitimate state goals cannot be pursued by means which, oh yeah, by the way, also censor Constitutionally protected content. There is, however, one flimsy fig-leaf draped over the phallus with which the state intends to rape the First Amendment: library patrons can petition a librarian for access to improperly blocked sites. In other words, when some thirteen-year-old in Possum Carcass, Mississippi who’s grappling with the possibility that he might be gay is blocked by censorware, he can always ask the friendly neighborhood librarian to connect him to a queer-teens support group. Then he’s just got to hope that this particular state employee deems his destination “appropriate.”
Technical difficulties aside, a further problem with CIPA is that it applies standards intended for children to library patrons of all ages. To paraphrase a seminal ruling by Justice Marshall, it limits the level of discourse reaching an inbox to that which would be suitable for a sandbox. This is, of course, perfectly in line with the wishes of would-be cultural comissars, who are forced to wear the guise of child-protectors only because the public would not accept direct limits on adult surfing. The rhetoric is different; the result is identical.
What’s most fundamentally wrong with laws like CIPA, however, is the unexamined core assumption that the freedom of speech so vital to an open and flourishing society of adults is somehow poisonous and damaging to children. Even normally astute jurists have taken it as an article of faith that photographs of penises and vaginas will necessarily wreak havoc on the psyches of young people. Yet there’s not a shred of credible evidence to support that notion. This is the dirty secret of our prospective public nannies: the material they target is selected not by any objective showing of psychological trauma, but by whatever set of cultural taboos is dominant enough to seem like “common sense.” When the claims of demonstrable harm are revealed as hollow, the true agenda of filter advocates stands as naked as a porn site model: they seek to have the state impose a majority’s parental prejudices on all our children. This is no less presumptuous than a demand that the state block websites about certain religions, to prevent the children of the devout from reaching “blasphemous” ideas.
Look, you want to stifle your kids’ fertile young minds? Fabulous. You want to install censorware on your home machine, paint your windows black, and have mini chastity-belts built for your tykes? That’s your prerogative. Just keep your grubby fingers off my browser.
