A coalition of free speech groups, publishers and booksellers filed suit July 13 against the State of Massachusetts to block enforcement of a law that would fine and/or imprison for up to ten years anyone who operates a Web site or transmits through e-mail, instant message, text message and other forms of online communication nudity or sexually related material deemed harmful to minors.
Massachusetts’ attempt to craft such a law is the latest in a long line of efforts by states and the federal government to punish those who post “harmful” material online. So far each of those attempts has ended with a court striking down the laws as unconstitutional.
In her carefully researched and thought-provoking 2001 book, Not In Front of the Children: “Indecency,” Censorship, and the Innocence of Youth, Marjorie Heins, founder of the Free Expression Policy Project, found that “indecency” (and their more recent incarnation, “harmful to minors”) laws aimed at protecting “the ethical and moral development of youth” have been the favored justification of censors dating back to Plato. And for good reason: they’re tough to oppose.
Politicians (at least those that want to get (re-)elected) understand all too well they are supposed to kiss babies, not — as the attack ads can be counted on to say about those who might oppose the law — stand up for the “smut peddlers” who make available material that might harm them.
Heins noted that the arguments of those opposing such laws tend to fall into three categories. First, sweepingly broad terms such as “indecent,” “vulgar,” and “harmful” have no clear, accepted or uniformly enforceable legal definition. Courts have had a hard enough — and many would argue wholly unsuccessful — time trying to agree on what constitutes obscenity. Watching them try to agree on what is or isn’t “harmful” to someone between the age of 0-17 would be almost popcorn-worthy. Thus far, in fact, every attempt to craft such a definition has been struck down as unconstitutionally vague.
Second, there’s the principle of “The Lowest Common Denominator.” A law that makes it illegal to post material online that might be “harmful” to a 7-year-old means that his 70-year-old grandparent had better like Big Bird. Both can use a computer mouse (the junior user, in fact, frequently being better at it than the senior) and online content providers not wanting to be ensnared by the law must assume junior will be clicking through their Web site. Finally, there are the unique jurisdictional problems (and more of those common denominator issues) that exist when trying to determine whose law to apply to an online content provider in San Francisco who posts material to a Web site hosted in Biloxi that is viewed by junior in Boston.
In addition to the vagueness, “lowest common denominator” and jurisdictional problems, Heins spent considerable time discussing a fourth argument that is, at best, an afterthought of most courts and many critics alike: banning “harmful” speech can harm minors’ rights. As the Supreme Court has said: constitutional rights ”do not mature and come into being magically only when one attains the state-defined age of majority.”
Young people, more than most, have a natural desire — and need — to explore. Granting some government official the power to pull the plug on that exploration based on his or her idea of what is morally or ethically “harmful” speech (a view that might be at odds with the minor’s own parents) is a dangerous precedent that effectively guts the First Amendment. Moreover, as Heins pointed out, the world is complicated and, at times, unpleasant. Shoving 18-year-olds into that world (not to mention, some of them into a military tank or foxhole) and expecting them to cope after pretending for 17 years that nothing harmful exists does them no favors.