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ALF News
No. 77, Winter 2001
Separating State and Culture
by Joan Kennedy Taylor
Today we have a popular culture that is deplored by many, especially politicians. It is sexually raucous, musically loud, artistically nihilistic, interpersonally rude, and politically apathetic. Our movies and television and song lyrics and video games seem to glorify crime and violence; we have a rash of criminals like the Unabomber, Timothy McVeigh, and the Columbine school killers that present themselves as principled and glamorous outsiders. And there is the great cultural change that is affecting us all, the Internet, that realm where children can roam free and the rest of us hurry to keep up with a deluge of new technology.
It's no wonder that the First Amendment is under attack today. The culture is clearly out of control. As an inscription found in an old Egyptian tomb said, "Children no longer obey their parents, and everyone writes a book."
Of course, as that example illustrates, the culture is never under control, but states always try. Most of the population often has little respect for other people's expression and want legislators and judges to 'do something' when that expression is perceived to be dangerous or unpleasant. Politicians are concerned with giving people what they want, in order to get elected, but since we do have a First Amendment, politicians need an excuse to censor expression. The most popular excuse today is protecting minors from harm -- and apart from the fact that minors have First Amendment rights too, many of the approaches suggested will censor adult access to materials and information also.
The First Amendment says, among other things, "Congress shall make no law...abridging the freedom of speech." This is pretty unequivocal, but there are of course exceptions. Thomas I. Emerson, an expert in the field, once said, "A man who says Fire to another man who pulls a trigger can't excuse himself by saying he was just exercising his right of free speech." The courts recognize punishment for libel and slander, rather strictly defined; for conspiracy to commit crimes; for betraying state secrets, like troop movements in time of war; and, the big anomaly since 1957, for just one sort of conduct, "obscenity."
Obscenity is in general not easy to prove -- there is a three-pronged test for it adopted by the Supreme Court in 1973. To be obscene, a work must depict or describe sexual conduct in a "patently offensive way," appeal to the prurient interest of the "average person," and have absolutely no "serious literary, artistic, political, or scientific value." Further, the work has to be taken as a whole and has to violate "community standards." In todays culture, this is generally very hard to establish.
However, in 1968, in a case called Ginsberg v. New York, the Supreme Court decided that it was constitutional to have a different standard for material sold to a minor under 17. It defined material "harmful to minors" as a "description or representation...of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse" that "predominantly appeals to the prurient, shameful, or morbid interest of minors," is patently offensive (to adult standards for minors), and, taken as a whole, "is utterly without redeeming social importance to minors" -- in the eyes of adults, of course. This language is similar to the Courts test for adult obscenity, but puts a lot more material, even nudity, off-limits.
Books and magazines have long been the privileged class of free speech -- technological media have characteristically had a hard time establishing their credentials. Motion pictures were considered for years to be a mere commercial endeavor, not worthy of First Amendment protection, and were licensed by states and censored at will. Radio and then television were (and still are) subject to government license and regulation because they used the airwaves, which were defined as belonging to "the people," which meant the government. No one can license books. The legal appeal of the Ginsberg language, of course, is that the Supreme Court has said that it can be constitutionally applied to print.
When regulation of the Internet was first proposed, Congress was torn as to whether to apply the Ginsberg "harmful to minors" standard for forbidden material or the much broader "indecency" language that had been applied to radio broadcasting -- and took a chance, that as a new communication technology the Internet would be subject to the more extreme regulation. However, the Communications Decency Act (CDA), forbidding "indecency" in Internet communications, was struck down, and the Court said the Internet deserved as much protection as print. And shortly thereafter, the Child Online Protection Act (COPA) --still to reach the Supreme Court on appeal -- was passed, using the more rigorous "harmful to minors" terminology.
It is not just sexual material that politicians are concerned about in popular culture. They want to limit violence, but so far, only sexual content can be legally limited. Constitutional law says that speech can be limited "to achieve a compelling government interest." Speech that can be shown to be fraudulent, for instance, can be banned or punished. Similarly, if it could be shown that violent speech or images could be proved to be directly psychologically harmful to minors, or caused minors to commit crimes, it could be banned. Hundreds of studies have tried to establish a causal connection between such depictions and later violence, but the results have been ambiguous and sometimes contradictory. This has not stopped attempts to legislate against violence, especially on the state level, usually against presumably less protected video games. Some, like a pending Indiana bill, include "serious bodily injury or bloodshed" in the definition of "harmful to minors" content. Oklahoma would like to forbid minors to buy or rent video games with "high violence" content -- defined as "images on a video screen which display over intense destructive action or force -- or has been rated "Mature" or "Adults Only" by the Entertainment Software Ratings Board.
This leads me to a phenomenon that has civil libertarians disturbed. In field after field, voluntary ratings seem to be the first step toward censorship. The Motion Picture Association of America voluntarily rates its movies -- and states introduce legislation to ban minors from buying or renting movies with a restricted rating unless accompanied by an adult (Massachusetts, South Dakota) or even to be admitted by theatre owners to any motion picture with a R or NC-17 rating (Arkansas). The recording industry has voluntarily adopted labels warning of explicit lyrics -- and Connecticut, South Dakota, Michigan and New York have all tried to ban the sale to minors of recordings with warning labels. Michigan is even trying to require warning labels on concerts by performers who have had a record with a warning label released during the last five years. Going back to video games, a number of states have introduced bills relying on the Entertainment Software Rating Board classifications to do their censoring for them -- often tacking on additional bans on "graphic violence." The definition of this in an Arkansas proposed bill is "any depiction of death or severe injury which shocks the conscience of the community and exceeds the boundaries of what should be tolerated in a civilized society including, decapitation, dismemberment, repeated instances of bloodshed or grotesque cruelty."
TV may be the next to go -- we already have ratings and the V-chip that can read them. And Internet movers and shakers have attempted to get Web sites to rate themselves so that browser can screen some ratings out. But an Associated Press story on March 21 reported, "Only a few hundred thousand web sites currently carry ratings. Millions more do not." Major Web browsers can already read such ratings, and some companies, including Microsoft and AOL, reportedly are interested in starting up a new Internet Content Rating Association. Stay tuned for more attempts to control Internet culture.
The Internet, of course, has revolutionary -- in the Industrial Revolution sense -- implications for society. It provides impoverished individuals with the same opportunity to publish opinions as the largest company. It has, as of now, no regional or national barriers to access. It enables anyone who has a computer with Internet access to carry on business from the most remote spots on earth. It is a leveler of stereotypes; as the joke goes, "On the Internet, no one knows youre a dog" -- or a woman, or a Black, or a paraplegic.
And the millions of sites that are available are exciting and scary. Not just Congress, but states are busy trying to censor the Internet. After Congress passed the CDA, a number of states passed similar state laws, and after the CDA was struck down and COPA was passed, many states passed laws incorporating the COPA harmful to minors language. And there is a new federal threat waiting in the wings. The challengers to the CDA made the mistake of supporting Internet filtering technology as a reasonable alternative to government regulation that could be used by concerned parents -- so now a new law, the Childrens Internet Protection Act (CIPA) requires all schools and public libraries that use federal funds to connect to the Internet to install filtering software on all computers. The software is so fallible that there is a real danger that the limitations of present technology could overshadow the free speech issues involved.
This is one of the peripheral but real censorship issues that arise with a behemoth government such as ours -- one way of censoring efficiently is just to take over the funding of every form of culture. If the government runs the schools and colleges, why can't it decide to forbid the reading of certain books in such schools? It certainly can pick the textbooks. If the government funds the creation and, even more important, the dissemination of art, why can't it forbid the distribution or display of art it doesn't like? Not too long ago, the Supreme Court decided that when the government funds birth control clinics, it can forbid doctors who work in those clinics to tell women where they might be able to get an abortion if they wished. The ever-expansion of government has led to a subspecialty of First Amendment law -- how much does the government as funder have to pay attention to free speech issues? If a doctor who considers an abortion medically necessary for a patient can be fired for communicating that medical opinion when hes paid by the government, thats a bad precedent for the public libraries that depend on federal money to survive, since private money has been crowded out.
This library filtering act was introduced by a Senator who is perhaps the most articulate and inventive enemy of free speech today, because he comes across as personable and reasonable -- Senator John McCain. His specialty is attempted end runs around the First Amendment. The library filtering act is his, the campaign financing reform act is his, it is he who when the NBC and BET networks didn't want to use the same rating system as the other networks (thus making the V-chips job more difficult) threatened those networks with the revoking of the licenses of all their affiliates by the Federal Communications Commission unless they knuckled under. He also tried to sick the Federal Trade Commission on the makers of "violent movies, music, or electronic games" in the fall of 2000. McCain wanted the FTC to take legal action against these companies for using "unfair or deceptive acts or practices" (forbidden by the FTC Act) in marketing their products to "children." The FTC, to its credit, refused. Alarmed by such threats, a group of organizations representing publishers and writers issued a statement in December criticizing Congress for threats and proposals for regulation, which included a proposed bill sponsored by (surprise!) John McCain and Joe Liberman to establish a universal ratings system.
On April 24, the FTC issued another report on the state of the industry, which was immediately greeted by a statement signed by 4 senators from both parties, including McCain. (Advocates of censorship come from both the left and the right.) They criticized self-regulation on the part of the recording, movie, and video game industries, threatening, "If anyone believes that our concerns and the concerns of American parents can be eliminated simply with opportunistic pledges, they are sorely mistaken."
Years ago, Ayn Rand was asked why, since she deplored the lack of freedom that she saw in the United States in the 40s and 50s, had she continued to live here? Her answer was simple. "Its because of free speech," she said. "As long as I can say what I want and write what I want to protest the policies that enslave the businessman and the philosophy that justifies those policies -- I am free to try to change them. No matter how much I may be taxed, or regulated in other ways, that is the basic freedom I need from the country I live in."
Today, the attacks on this basic freedom give libertarians a great political opportunity to get their ideas to a wider audience. Why? for three reasons. In the first place, we have the opportunity to make a self-evidently moral rather than a practical argument. Defending the First Amendment to our Constitution and the five freedoms that it promises without restriction ("Congress shall make no law") -- freedom of religion, of speech, of the press, of assembly, and to petition the government -- is morally persuasive to those who assume that our government is based on ideals of freedom. No long explanations are necessary.
Second, in our legal history, the freedoms listed in the First Amendment have for some time been considered to be legally preferred freedoms, legally of greater weight than other provisions in the Bill of Rights, which means that the courts are in general less willing to shoot them down, and there are a lot of eloquent defenses of these rights in court decisions to draw on as precedents. This means in turn that there is a real possibility of accomplishing something in our lifetime -- always encouraging for political activists.
And third, the First Amendment is in my opinion uniquely a cross-over amendment, one that implies the libertarian approach to property rights and economic freedom, which makes it an unparalleled recruiting tool.
Let me take a moment on this. As interpreted by the courts, First Amendment freedoms are individual rights. It is the individual from whom the law cannot take away the right to follow conscience, to speak, to write, to meet with others, and to sign petitions. But for these rights to be signifint, individuals need to be able to form associations that own property. Churches need donations and buildings in which to congregate. Newspapers need printing presses and ink. Without property rights, for individuals and associations, these First Amendment rights would be a nullity. So the First Amendment is not least a teaching tool by which libertarians can persuade ad hoc political allies of the interconnectedness of rights.
There is another reason why a strategy of First Amendment activism is an important one. We may lose some of our battles, and we may offend others with some of our battles, but we need no compromise in implementation.
One of the problems we libertarians have faced is the difficulty in finding interim political positions that will get our country (we hope) from where it is now to the freedom we hope for in the future. Often -- usually -- these interim positions pose problems of their own to our ideals of freedom. We want to get the government out of education and so take an interim position of school vouchers -- giving government money to parents who want to send their children to private schools, to lessen the stranglehold of public schools. But as Alan Reinach of the Seventh Day Adventists pointed out in calling for the defeat by Adventists of a California ballot proposition for vouchers -- if Adventist schools received vouchers, it might temporarily swell their coffers, but it would inevitably lead to government control of these schools. Its not surprising that he has taken a similar position on President Bushs call for government-funded "faith-based initiatives" in social service.
We want to stop the War on Drugs, and may be tempted to find common cause with those suggesting that we channel anti-drug money into treatment centers -- mandatory treatment centers. Getting some people out of jail will end in extending psychiatric imprisonment. We look for roads to freedom, and we find instead extensions of government power.
But we can make a real difference if we work for incremental gains in free-speech areas, because here, an incremental approach works. Each victory does win some freedom.
In sum, Libertarians want to change the culture. Emphasizing the already existing battle to separate the culture from state control is a giant step toward that change.
Two new books from the prolific pen of Wendy McElroy -- "Dissenting Electorate: Those Who Refuse to Vote and the Legitimacy of their Opposition" edited by Carl Watner with Wendy McElroy http://www.zetetics.com/mac/dissent/index.html and "Individualist Feminism of the Nineteenth Century: Collected Writings and Biographical Profiles," by Wendy McElroy http://www.zetetics.com/mac/19thcent/index.html
Both are available from McFarland, Box 611, Jefferson, North Carolina 28640. 336-246-4460. Orders 800-253-2187. http://www.mcfarlandpub.com/
Sharon Presley gave a talk on individualist anarchist feminism on March 25 in San Francisco at an anarchist conference held in conjunction with the annual Anarchist Book Fair.
Joan Kennedy Taylor's article is based on a talk she gave at the New York State Libertarian Party Convention on April 28 in ew York City.