Dirty minds

The Internet's would-be censors are back with a dangerous new law that threatens free speech -- and, perversely, protects for-profit pornographers

by Dan Kennedy

Tom Rielly knows what it's like to feel alone and frightened, and to believe that no one cares whether he lives or dies. As a 17-year-old student at a privileged high school on Chicago's affluent North Shore, Rielly tried to kill himself. It was a horrifying, desperate act, but one not particularly unusual for a gay teenager trying to come to terms with his sexuality.

Today Rielly, now 34, is the chairman and founder of PlanetOut, a San Francisco-based Web site that has grown into the country's largest online service for lesbians and gay men, with an estimated 500,000 visitors per month. With 21 employees and satellite offices in Los Angeles, Chicago, and New York, PlanetOut is an impressive success story.

But Rielly emphasizes that PlanetOut is as much a cause as it is a business -- and that, for him, the most important elements of that cause are the resources PlanetOut offers to gay and lesbian teenagers, some of whom may find themselves in the same dark place that nearly claimed him.

Fight the right Several free-speech organizations have posted extensive information on their Web sites about the Child Online Protection Act and what citizens can do to fight it -- including signing an online petition to be delivered to Attorney General Janet Reno. The American Civil Liberties Union (http://www.aclu.org), which brought the suit that overturned the Communications Decency Act and which once again is taking the lead, is a good place to start. The Electronic Frontier Foundation (http://www.eff.org) is the home of the "Blue Ribbon Campaign," in which people maintaining Web sites are encouraged to attach a blue-ribbon graphic that links to the EFF's extensive free-speech archives. Other excellent sources of information are maintained by the Center for Democracy and Technology (http://www.cdt.org) and the Electronic Privacy Information Center (http://www.epic.org).

And that is why PlanetOut is one of 16 businesses and free-speech organizations to sign on to a lawsuit filed by the American Civil Liberties Union to overturn the Child Online Protection Act (COPA), tossed into the massive budget bill that Congress passed just before the November elections. Pushed by Republicans and backed by the religious right, COPA requires commercial Web sites that offer material considered "harmful to minors" to restrict their wares to those who can prove they're adults -- via a credit-card number, for instance, or a password issued by an adult-verification service (see "Fight the Right," right).

Ostensibly aimed at pornographers, COPA has raised fears that the religious right will pressure prosecutors to use it instead to target nonpornographic sites they don't like, such as PlanetOut. Or those that provide information on safe sex or abortion. Or those with frank discussions and depictions of sexuality that would hardly be considered pornographic but might well be defined by someone, somewhere, as "harmful to minors."

"Under the Act," says the ACLU's lawsuit, "any speech that some community might consider to be `harmful to minors' -- including Ken Starr's report on the Clinton-Lewinsky scandal or a Mapplethorpe photograph -- is potentially criminal if displayed for free on the World Wide Web . . . and [is] accessible to minors."

Rielly is defiant when he's asked whether he would consider restricting PlanetOut to adults. "We're not going to sacrifice young people for the safety of reducing our liability. I'll go to the mat on that," he says. "We really care about what we're doing. For me it's a matter of life and death."

Unfortunately for Rielly, it could also be a matter of a $50,000 fine, six months in prison, or both.

In harm's way The Child Online Protection Act (COPA) isn't the first instance of Congress's trying to regulate Internet smut. A far more notorious example was the Communications Decency Act (CDA), passed as part of the Telecommunications Reform Act of 1996. The CDA attempted to regulate pornography on the Internet by requiring that any material considered "indecent" be banned from areas that could be accessed by minors. The ACLU, joined by some of the most influential media organizations in the country (including the New York Times Company), fought the law, arguing that the "indecency" standard would dumb down the Internet to the level of children's television. And in a ringing defense of free speech in cyberspace, the Supreme Court overturned the CDA in 1997. Drafters of the new Child Online Protection Act attempted to meet some of the Court's objections by opting for a less sweeping "harmful to minors" standard, which is currently used to regulate pornography in 48 states. But, like the "indecency" standard, the new law is so vague that the definition of what is "harmful to minors" is strictly in the mind of the beholder. At least on the surface, the wording of the standard seems precisely drawn -- indeed, reading it calls to mind Clinton lawyer David Kendall's characterization of the Ken Starr report, which he criticized for its "pornographic specificity." But in a political culture in which the president of the United States can argue with a straight face over the meaning of the word is, COPA's definition of what is "harmful to minors" contains enough interpretive leeway to fulfill the erotic needs of the most censorious religious conservative. The law defines material that violates the standard as "any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that -- (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a matter patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." Peggy Peterson, press secretary to Representative Michael Oxley (R-Ohio), COPA's prime sponsor, defends the "harmful to minors" standard as well-established and reasonable. "It is not legal for a minor to walk into an adult bookstore and purchase a Triple X film," Peterson says. "Mr. Oxley believes that the Web should be brought into this standard." The law specifies that material must meet all three standards before it would be considered "harmful to minors," which Peterson and other proponents cite as evidence that COPA is sufficiently narrow to protect free-speech interests. Perhaps that would be true if they could guarantee that the law would be enforced only by responsible adults. But the ACLU points to a number of loopholes that could be exploited by a federal prosecutor seeking to censor speech he doesn't approve of. For instance, the law pertains to text as well as pictures, which is why the editors of the online magazine Salon, a serious literary and political publication with a high sexual quotient, have joined the ACLU's lawsuit. The law states that material that "lacks . . . value for minors" (emphasis added) can run afoul of the standard, which could theoretically be used to keep information about safe sex, homosexuality, or abortion from young eyes -- particularly since COPA does not distinguish between the differing needs of older and younger minors. By applying "contemporary community standards," the law raises the specter of a prosecutor in Fayetteville, Arkansas, issuing a warrant for the arrest of PlanetOut chairman Tom Rielly in his San Francisco office. By requiring adults to identify themselves, either through their credit cards or a password system, it violates their privacy. And because COPA's drafters appear to have a fuzzy concept of how the Web works, it is unclear whether a link to a genuinely pornographic site would be considered pornographic in and of itself. PlanetOut, for instance, contains no pornography, but it does contain lists of porno links. It is the very vagueness of the "harmful to minors" standard that free-speech activists fear will be used to attack material that is not pornographic, but is merely controversial or unpopular. "When something that general is passed," says Skipp Porteous, who researches the religious right for the Institute for First Amendment Studies, "then those who want it to further their agenda will read things into it that others do not see."

The passage of COPA was a remarkably cynical exercise, even in a political climate in which moralizing about sex is as ingrained as boinking interns and shaking down special interests for campaign contributions. Coming a little more than a year after the Supreme Court struck down the notorious Communications Decency Act (CDA), COPA is somewhat more narrowly drawn, though civil libertarians insist its constitutional problems are just as serious (see "In Harm's Way," right)."It seems clear to me that this law is much more like the CDA than it is different," says Ann Beeson, the ACLU's national staff attorney. It is also fraught with the kinds of contradictions that are inevitable when politicians are motivated solely by their lust to pander.

For instance, as the Department of Justice pointed out in a memorandum sent to Congress before COPA's passage, the law will be ineffective because it can't -- for obvious reasons -- target non-US-based sites. At the same time, the Justice memo warned that enforcing the law could divert resources from ongoing efforts to investigate and prosecute online child pornography. And though Justice didn't mention it, COPA applies only to the Web, leaving out Usenet, an older, more arcane part of the Internet where some of the vilest pornographers lurk. (Most of Usenet consists of legitimate newsgroups devoted to interactive discussions about politics, music, computers, and myriad other topics.) There are good legal and technical reasons not to attempt to regulate Usenet, where literally no one is in charge and where pictures of such atrocities as sexual torture are invariably posted by people using anonymous, untraceable e-mail addresses. Yet the omission of Usenet makes a mockery of claims that COPA will do something about Internet porn.

Even more perversely, COPA would actually function as a protection racket for commercial pornographers, nearly all of whom already use credit-card verification. Thus, Watersports.com (an actual site) would be held harmless. Meanwhile, the folks who run PlanetOut -- not to mention Salon magazine, RiotGrrl, and the Philadelphia Gay News, to name three other co-plaintiffs -- would be left to wonder when the virtual equivalent of a jackbooted thug would come knocking at their doors.

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I thought Shyla Welch, director of communications for the pro-COPA organization Enough Is Enough, was kidding when she told me that Bestiality.com, a commercial site that requires the use of a credit card, features a free, unrestricted promo shot of a woman administering oral sex to a horse.

It turned out she was wrong, but only because on the day I tuned in the site had substituted a different photo -- this one of two women giving a handjob to a massive tubular object purported to be the penis of a Great Dane. Backtracking in an attempt to determine just how easy it is to find Bestiality.com, I entered the word bestiality on Yahoo!, the most popular Internet search engine. Bestiality.com was the second site listed.

Of course, a person looking for bestiality shouldn't be surprised when he finds it. It's a problem of a higher order when someone -- say, a child -- involuntarily has pornographic come-ons shoved in his face. Thus it was more discomfiting when my seven-year-old son and I logged on to Yahoo! and entered "Adam and Eve," looking for material on a biblical-history project -- and turned up several sex-related sites.

Parental outrage over such accidental and pervasive porn access has fueled the rise of Enough Is Enough, the moderate face of the pro-censorship movement. Based in Fairfax, Virginia, it is best known for its association with celebrity moralist Donna Rice Hughes, immortalized years ago on Gary Hart's lap aboard the good ship Monkey Business. Given that the Internet is loaded with pornography, it's hard not to sympathize with reasonable-sounding people such as Hughes and Welch, who contend that the main purpose of COPA is to force for-profit porn sites to stop posting free, unrestricted samples of their wares. Indeed, Welch had a well-thought-out answer for every question I asked her.

What about objections that COPA will fail because foreign sites will pick up the slack? "We still do need to recognize our sovereignty over our own country," Welch replies. "We may see other countries follow suit, we may not."

What about religious-right groups that might try to use the law to prevent kids from seeing information about safe sex? "If they are to go so far as to show couples engaged in actual intercourse, that would be inappropriate and unnecessary. But I'm not aware of any sites that are doing that."

Welch then plays her ace-in-the-hole: the perception that the ACLU and other free-speech activists are pursuing a radical agenda that few support. "The ACLU as a matter of policy doesn't believe in keeping any material away from minors," she says. "So that's what the real issue is here."

That complaint is not entirely without merit. Free-speech activists have hurt their credibility by taking extreme positions in defense of Internet porn, going back to 1995, when Time magazine did a cover story based on a study by a University of Pittsburgh student named Martin Rimm. Rimm's scaremongering statistics about porn's widespread availability turned out to be grossly flawed, apparently deliberately so, which was a major embarrassment for Time. Yet the bitterness and scorn with which Rimm was attacked by anticensorship forces seemed at odds with the fact that porn is, indeed, a ubiquitous presence on the Net.

Civil libertarians also did themselves no favors in the spring of 1997, when Boston Public Library president Bernard Margolis, under pressure from Mayor Tom Menino, installed porn-filtering software on Internet terminals used by kids younger than 18 ("Porn Patrol," News, March 7, 1997). Though Margolis arguably set the age limit too high, the absolutist opposition of the ACLU and the American Library Association rang hollow, given that Margolis was attempting to address the very real problem of kids' calling up porn sites in the children's room. "The ACLU's determination to give minors the rights adults enjoy is a perversion of freedom," wrote Amitai Etzioni, a liberal political theorist, in a recent Wall Street Journal op-ed piece commenting on a similar library case in Loudon County, Virginia.

Library policies aside, filtering software is a far better approach than pernicious censorship laws such as the CDA and COPA. The ACLU cited the existence of such software as an argument for striking down the CDA. The Supreme Court agreed, endorsing the software as one of the "less restrictive alternatives" that were preferable to sweeping bans. Such software is hardly perfect, and its tendency to block legitimate informational sites on controversial topics makes it more suitable for younger kids than for older teens. (The leading brand, Cyber Patrol, does not block PlanetOut; yet, inexplicably, it blocks RiotGrrl, which seems equally innocuous.) But it does give parents, librarians, and educators the ability to filter content without relying on odious laws. For instance, America Online, which at more than 13 million subscribers is by far the largest home Internet provider, offers an impressive array of "parental controls," including one that blocks all but pre-approved, kid-friendly Web sites. Unlike COPA, filtering programs block foreign as well as domestic porn sites and can be set to shut out Usenet entirely. That makes them not just a "less restrictive" alternative, but a more effective one as well.

The continued pursuit of harsh new laws in the face of such a decentralized, individual solution to Internet pornography suggests that the real motivation is an anti-freedom, right-wing agenda. As a commentary on the current state of conservatism in America, COPA, with its bizarre simultaneous abhorrence of and obsession with sex, is as fascinating a document as the Starr report. COPA is, to borrow an argument used by journalist and author Andrew Sullivan in a recent New York Times Magazine essay, an example of "conservatism become puritanism, a conservatism that has long lost sight of the principles of privacy and restraint, modesty and constitutionalism, which used to be its hallmarks."

Indeed, if COPA's friends are any indication, we should all be afraid, very afraid. The Christian Coalition is an enthusiastic supporter. So is the Reverend James Dobson's ultracensorious Focus on the Family, whose Internet policy analyst, Steve Watters, would go so far as to slap adult-access restrictions on Nerve, a harmless online magazine featuring "literate smut," including artsy, extremely soft-porn photos.

"What people call pornography is a legitimate thing to have access to in society," says James Love, director of the Ralph Nader-founded Consumer Project on Technology. "Going to the corner video store and renting a porno video is one of the things we do in the United States, and it's not a bad thing at all. Part of [the censors' motivation] is just dishonesty about sex and people's right to get off the way they want."

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Barbara Nesbitt, a grandmother from Austin, Texas, doesn't run a porn site. But OBGYN.net, a Web site started a few years back by Nesbitt, her sister, and her brother-in-law, is a textbook example of why COPA is a bad law.

OBGYN.net's section for medical professionals is filled with graphic photographs of deformed fetuses, women's genitals, and disease-ridden organs. The women's section contains message boards with questions about such adult-oriented problems as sexual dysfunction. Any of that content might be considered "harmful to minors." The site also contains a link to Planned Parenthood, which is filled with information on safe sex and on how to obtain a safe, legal abortion. OBGYN.net, an advertiser-supported commercial site, is covered by COPA; Planned Parenthood, a nonprofit, is not. Could OBGYN.net be prosecuted for offering a link to Planned Parenthood, even though Planned Parenthood itself is immune? Stay tuned.

Nesbitt, a nurse-turned-editor who grew up in Jamaica Plain, could add an adult-verification feature to her site, but she has no intention of doing so. Why, she asks, should she inconvenience doctors and spook potential site visitors (some of whom, after all, might not be 18) for the sake of complying with a law that promotes censorship and enhances the role of big government? Thus, when she was asked to become a plaintiff in the ACLU's suit to overturn COPA, her response was an enthusiastic yes.

"I'm a 62-year-old woman who's been a conservative, a liberal, a moderate, and everything else," Nesbitt says. "And I don't think anybody has the right to tell anybody else what to do. We're not militants by a long shot. But we decided that this could make a tremendous difference in how free the Internet is. We are a medical site. But the law as it's stated says that any time you use the words penis, breast, or vagina, it's pornographic. The thing is, it's a bad law. Because they didn't think it through."

The ACLU expects to reach an agreement with the Justice Department, perhaps as early as this week, to put COPA's November 20 implementation date on ice until the lawsuit can be heard. It's essentially the same course that was followed in the CDA case.

But the fact that Congress would pass and panderer-in-chief Bill Clinton would sign such a law in the first place raises a disturbing possibility: that a majority of our elected officials knew but didn't care that COPA was unconstitutional, preferring to rack up points with pornophobic special-interest groups than stand up for the First Amendment. "By the very clear precedent of the Supreme Court, it's unconstitutional. And they had to have known that," says the ACLU's Ann Beeson.

Enough Is Enough's Shyla Welch complains that the Clinton administration has been lax in fighting Internet obscenity and child pornography, two types of speech that clearly can be prosecuted. It is interesting, to say the least, that Clinton would sign a bill restricting legal speech while doing little to prosecute illegal speech.

Though the ACLU, the Electronic Frontier Foundation, the Center for Democracy and Technology, the Electronic Privacy Information Center, and other pro-free-speech organizations are once again at the barricades, there's a weary sense of déjà vu permeating the whole effort. The passage of COPA hasn't received nearly as much media attention as the CDA did, and it seems unlikely that the e-mail protest being organized by these activist groups will be as successful as the anti-CDA drive. Yet if COPA stays on the books, its vague, one-size-fits-all "harmful to minors" provision will lurk in the background, ready to strike in unpredictable ways.

Sometime in 1999, or maybe 2000, the Supreme Court will rule on the constitutionality of the Child Online Protection Act. In all likelihood, the Court will strike it down, stating, as it did in overturning the CDA, that the law would unnecessarily interfere with "the vast democratic form of the Internet" -- a "dynamic, multifaceted category of communication" that permits "any person with a phone line" to become "a town crier with a voice that resonates farther than it could from any soapbox."

Such a ruling will be hailed as a victory for free speech, as a clear signal that the First Amendment means precisely what it says. But before the cheering dies down, the opponents of free speech will be back, wringing their hands on behalf of "the children" and pushing a new and improved censorship scheme.

Fighting the enemies of the Constitution is, of course, the price of freedom. It's just that when those enemies include a majority of Congress and the president of the United States, there's always a possibility that, someday, we'll no longer be able to afford the cost.

Dan Kennedy can be reached at dkennedy[a]phx.com.