Constitutional Free Speech, Friend to Pornography

Can society set ethical, legal, or cultural limits on pornography in the age of the Internet? And is this a reasonable or misguided aspiration? In light of the Supreme Court’s end-of-term decision on legislation aiming to regulate Internet pornography, [via COPA, or Child Online Protection Act] The New Atlantis asked legal scholar Jeffrey Rosen and theologian David B. Hart to comment.

Here I've strung together a mostly fluid collection of excerpts From David B. Hart's response, the entire article of which you can read HERE. My excerpts comprise most of the first half of the article. 

Writing not as a lawyer, I am able to address the Supreme Court’s recent decision regarding the Child Online Protection Act (COPA) only somewhat obliquely. Concerning the legal merits of the case, certainly, I have little to say. This is not necessarily because I believe one must be a lawyer to understand the Court’s decision, but because I am largely indifferent to the legal arguments contained within it, and am convinced that even the question of whether or not it was dictated by genuine constitutional concerns deserves very little attention.

I can begin, however, by confessing my perplexity at some of the reasoning behind the court’s majority ruling, most especially the curious contention that COPA might prove to be unconstitutional on the grounds that there exists filtering software that provides a “less restrictive means” of preventing access to pornography on the Internet and that does not involve “criminalizing” any particular category of speech. Surely, if we are to be guided by logic, the existence or nonexistence of such software (which is, after all, merely a commercial product that parents may purchase and use if they are so inclined and have the money) cannot possibly make any difference regarding the question of whether the act violates constitutional protections. Moreover, it is difficult for me to grasp why the Court works upon the premise that whatever means are employed to protect children from Internet pornography should involve the barest minimum imposition possible upon the free expression of pornographers.

I can even appreciate something of the Court’s anxiety concerning the scope of the government’s control over “free expression,” given that the modern liberal democratic state—with its formidable apparatus of surveillance and legal coercion, and its inhuman magnitude, and its bureaucratic procedural callousness, and its powers of confiscation, taxation, and crippling prosecution, and its immense technological resources—is so very intrusive, sanctimonious, and irresistible a form of political authority. Allow the government even the smallest advance past the bulwark of the First Amendment, one might justly conclude, and before long we will find ourselves subject to some variant of “hate speech” legislation, of the sort that makes it a criminal offense in Canada and Northern Europe for, say, a priest to call attention publicly to biblical injunctions against homosexuality. We have, as a society, long accepted the legal fiction that we are incapable of even that minimal prudential wisdom necessary to distinguish speech or art worthy of protection from the most debased products of the imagination, and so have become content to rely upon the abstract promise of free speech as our only sure defense against the lure of authoritarianism.

Since legal principles—as opposed to exact ordinances—are remarkable chiefly for their plasticity, it requires only a little hermeneutical audacity to make them say what we wish them to say (one never knows, after all, what emanations may be lurking in what penumbras). Just as the non-establishment clause might well have been taken—had our society evolved in a more civilized direction—as no more than a prohibition upon any federal legislation for or against the establishment of religion, so the promise of freedom of speech might have been taken as a defense of political or religious discourse, and nothing more. There is certainly no good reason why “free speech” should have come to mean an authorization of every conceivable form of expression, or should have been understood to encompass not only words but images and artifacts, or should have been seen as assuring either purveyors or consumers of such things a right of access to all available media or technologies of communication. We interpret it thus because of who we are as a society, or who we have chosen to be; we elect to understand “liberty” as “license.” How we construe the explicit premises enshrined in the constitution is determined by a host of unspoken premises that we merely presume, but that also define us. This is why I profess so little interest in the question of the constitutionality of COPA; the more interesting question, it seems to me, concerns what sort of society we have succeeded in creating if the conclusions we draw from the fundamental principles of our republic oblige us to defend pornographers’ access to a medium as pervasive, porous, complex, and malleable as the Internet against laws intended to protect children.

The damage that pornography can do—to minds or cultures—is not by any means negligible. Especially in our modern age of passive entertainment, saturated as we are by an unending storm of noises and images and barren prattle, portrayals of violence or of sexual degradation possess a remarkable power to permeate, shape, and deprave the imagination; and the imagination is, after all, the wellspring of desire, of personality, of character. Anyone who would claim that constant or even regular exposure to pornography does not affect a person at the profoundest level of consciousness is either singularly stupid or singularly degenerate. Nor has the availability and profusion of pornography in modern Western culture any historical precedent. And the Internet has provided a means of distribution whose potentials we have scarcely begun to grasp. It is a medium of communication at once transnational and private, worldwide and discreet, universal and immediate. It is, as nothing else before it, the technology of what Gianni Vattimo calls the “transparent society,” the technology of global instantaneity, which allows images to be acquired in a moment from almost anywhere, conversations of extraordinary intimacy to be conducted with faceless strangers across continents, relations to be forged and compacts struck in almost total secrecy, silently, in a virtual realm into which no one—certainly no parent—can intrude. I doubt that even the most technologically avant-garde among us can quite conceive how rapidly and how insidiously such a medium can alter the culture around us.

We are already, as it happens, a casually and chronically pornographic society. We dress young girls in clothes so scant and meretricious that honest harlots are all but bereft of any distinctive method for catching a lonely man’s eye. The popular songs and musical spectacles we allow our children to listen to and watch have transformed many of the classic divertissements of the bordello—sexualized gamines, frolicsome tribades, erotic spanking, Oedipal fantasy, very bad “exotic” dance—into the staples of light entertainment. The spectrum of wit explored by television comedy runs largely between the pre- and the post-coital. But the Internet offers something more disturbing yet: an “interactive” medium for pornography, a parallel world at once fluid and labyrinthine, where the most extreme forms of depravity can be cheaply produced and then propagated on a global scale, where consumers (of almost any age) can be cultivated and groomed, and where a restless mind sheltered by an idle body can explore whole empires of vice in untroubled quiet for hours on end. Even if filtering software were as effective as it is supposed to be (and, as yet, it is not), the spiritually corrosive nature of the very worst pornography is such that—one would think—any additional legal or financial burden placed upon the backs of pornographers would be welcome.