There are two interesting developments this week on the pornography front. Adam Greenwood wrote an excellent article for Junior Ganymede endorsing government efforts to block access to porn sites for children. Meanwhile, Marriott announced that it will no longer be offering adult movies at its hotels because…everybody can get their porn via laptops and ipads (presumably), so they don’t need them on the hotel TVs.
I encourage everybody, no matter how you feel about this issue, to read Adam’s piece, which makes as good an argument as you can make for government action on this issue. But ultimately I disagree with him (respectfully and lovingly).
This paragraph by Adam is a gem:
Our current partial social model of hook-ups and cornucopic pornography is unsustainable. A society by definition is about rich and multi-textured connections between people. It is also, if it is to have some sustaining depth, about children and child-raising. Hook-ups and pornography are not about any of these. They are self-centered and now-centered. Nothing comes of them. Their ethos is incompatible with a prior commitment to marriage and family.
I completely agree with this on a personal level. Let me say that the worst thing about pornography is that it destroys relationships because people begin living in fantasy worlds rather than the real world. Young women are especially victims of this horrible malady — so many young men are addicted to porn these days that it is impossible for them to have normal relationships with the women around them. This is why modern-day prophets decry pornography at every single General Conference. In our homes, we should do everything possible to shield our children from pornography and to avoid it ourselves.
The issue here is whether the government should step in and protect us. Australia and Britain are looking at doing this by blocking porn access for children. Adults would presumably still be able to see porn, but children would be shielded.
This issue is not simply a freedom of speech issue, as Adam points out. We don’t sell alcohol to nine-year-olds, but we do sell it to 21-year-olds. Our society has special protections for children, and this should be considered.
Ultimately, I would oppose similar efforts in the U.S. for three reasons: 1)technologically, such measures are extremely difficult to enforce by government 2)market forces have already stepped forward to offer home-based solutions and 3)I fear big government solutions in general.
If you look at this article, the UK plans on blocking pornography by putting filters on internet service provider servers. This is a massive, hugely expensive undertaking. Who would be doing this in the U.S.? Presumably, some area of the DoJ. The cost involved would ultimately run into the billions. Why? There are thousands of ISPs in the U.S. running literally millions of servers. So, the DoJ would order the ISPs to put the blocks on their servers or suffer fines. This means new regulation, new enforcement powers, new costs for internet providers. You’d have cadres of young bureaucrats monitoring the ISPs, poking around and causing trouble.
We are facing a brave new world. This is the reality of the internet. A few years ago, the United States cracked down on internet-based gambling. What did gambling companies do? They simply moved their servers overseas. Panama, the UK, Russia — their data centers are literally filled to the roof with servers running gambling operations, and most of their traffic still comes to the U.S. There is no evidence that internet-based gambling has gone down. The same thing would happen in the arena of porn. So, companies in the U.S. would face huge burdens blocking porn, but other companies would step in with unblocked porn. We would see no appreciable decrease in the amount of porn flowing into the U.S. Kids would still be able to see it. One porn IP address would be blocked — 10 new ones would pop up in its place.
Much more effective at blocking porn aimed at kids are the various software solutions out there. Again, it is possible to get around these solutions, but the key for me is that it puts responsibility where it should be: on the backs of the parents. If parents would follow common-sense rules such as making kids only use a computer in a public area and monitoring what their kids are doing on-line (ie, being actual parents), many of the problem with porn would be eliminated. But these software solutions can help.
My last point is a general lament about big government solutions in general. Folks, you do not want the government ordering ISPs what they have to do with their servers and monitoring what kind of content goes in and out. The great success of the internet, and the reason that it is still one of the fastest-growing areas of the economy, is that it is a truly free market, despite government’s occasional attempts to control it. Measures like this are the proverbial camel’s nose under the tent. First we tell ISPS they can’t do gambling, then we tell them they can’t do porn. Then we tell them they must have “balance” in the kind of news they report (a fairness doctrine for the internet). Then we tell them they must promote good eating habits and exercise for children. And on and on.
Nobody wants a single child to see porn, especially not me with my five kids. But I don’t think there is much the government can do about it.
With regard to the decision by the Marriott hotel and porn, I don’t know what to make of it. Was this caused by all of the pro-family groups protesting? I don’t know. I almost always stay in Marriott hotels when traveling for various reasons, and it will be nice not to have to see the ads for porn when I turn on the TV. I am most inclined to believe that this was simply a market decision — it may have cost more to provide porn than Marriott was getting in revenue.
Ironically, Marriott might be the victim of the success of internet porn. Everyone’s got a wireless connection these days.
I don’t have any killer rebuttals for any of your points. Just that a healthy society is not one where parents have to invest time and money to opt-out of the squalor. A healthy society is one where people who want to participate in the squalor should have to invest time and money and the default should be parent-friendly. I’m OK with using governmental means to achieve this end. I’m not against government per se. I’m against government as a master, but in this case I believe government would be serving society. There are probably ways to structure the program that lessen the danger of China-style political filtering.
I get your worries about suppression of ‘dangerous’ (i.e., redstate) political speech, but something like what I’m proposing might actually lead to less of it. Lots of companies currently have filtering software that was primarily instituted to block high-bandwidth porn stuff, but that also blocks a number of conservative sites as ‘extreme.’ If they didn’t have to filter the porn, they might not filter the other.
I certainly agree with your arguments that sweeping legislation not only limits free speech, but does very little to protect anyone from anything, and only hurts the economy, etc. The issue is a private one, and so is the solution. Talk to your children. Demonization and prohibition, treating porn as a taboo, only makes young people want to pursue it more. If you object to porn, tell them in honest, un-exaggerated terms why you feel that way. If they check it out anyway, don’t freak out. There is no need to pathologize harmless sexual behavior by scaring young people with cautionary tales of addiction and ruined relationships. I suffered entirely too much in my life from being told my entire youth that porn and other things were unhealthy and evil, and I was convinced they were at the root of my problems with my physical relationship with my husband. I was wrong, but I was so focused on how I’d ruined myself with porn that I didn’t look for the real answers, I just hated myself. Thankfully I learned the truth, and am my life is much better for it. But I would have been much better off if nobody had lied to me about how evil porn is.
Unfortunately the facts don’t support Greenwood’s or your argument about the effect of porn on society.
There is no evidence that exposure to sexual imagery is harmful to anyone, of any age. While parents have every right to decide what their own children see, they have no right to force their values and parenting strategies on everyone else.
While one could argue that the porn industry is full of abuses, and that therefore consumption of the product is immoral because of how it was produced, you can’t argue that porn is having a negative effect on society. There is no evidence that this is true. While it is true that viewing of porn on some level is almost universal, by and large the medical and mental health communities have not produced any evidence or conviction that “porn addiction” even exists, and your assumption that men use porn much more than women is ridiculous and unsubstantiated. Women watch porn, and to assert that they do not is a sexist relegation of women as non-sexual beings. If someone is viewing porn in excess, more than likely they are actually suffering from a real mental illness, such as depression, and pseudo-diagnoses like “porn addiction” only distract from the real problem.
Anything taken to excess is harmful, including food, water, sunlight, and sex. People can have happy, healthy relationships while viewing pornography in moderation, whatever that means to them.
Elder Ballard said in the October 2010 conference:
“There is also great concern about some of the pernicious, addictive behaviors like gambling and evil pornography that are so personally destructive and so rampant in our society. Remember, brothers and sisters, any kind of addiction is to surrender to something, thus relinquishing agency and becoming dependent.”
There are literally dozens of conference talks linking pornography to addiction.
This Wikipedia page indicates that porn addiction is not a formal addiction, but the medical community does recognize its harmful effects.
http://en.wikipedia.org/wiki/Pornography_addiction
This story also indicates porn addiction is a problem:
http://articles.sfgate.com/2010-02-22/entertainment/17950909_1_sexual-addiction-sexual-behavior-pornography
I know probably a half-dozen men who were or are addicted to pornography, with horrible consequences to their marriages. They literally could not stop themselves. The vast majority of pornography is aimed at men, not women.
Using sex as a self-centered commodity for purely physical pleasure is a problem, whether that’s via hook-ups, prostitutes, or pornography. Sex means something.
Heroin, murder, and Nazism* aren’t something you should try in moderation. Neither is pornography.
*I put this in so you could claim a Godwin’s law victory if you like.
You personally may put it in the same category as things which are all bad no matter what, but not everyone does, some people see it as something that is fine in small amounts, and many of those people are doctors and psychologists. All I’m saying is that your personal morality should not be enshrined in legislation. Because the fact is, for many many people viewing porn is completely harmless.
I still say that the way it’s made is abusive enough that I personally feel viewing porn, even if it doesn’t hurt me, is wrong on a moral level. But again, I can’t force my moral choice on others, it’s my choice for myself, and that’s all.
*Godwin’s law incidence recorded in my log book. 😀
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I prefer to be the censor in my home. Just like I don’t rely on a small group of people in Hollywood to decide whether a movie is ok for my children with their rating system, I’m not interested in a government agency deciding what is and isn’t acceptable for them. There are ways for a parent to filter, some of them free, that make it unnecessary for the government to step in and do it for them.
The discussion on how healthy pornography is for people has been hashed out so many times on the internet that I can’t bring myself to be that interested in talking about it again. I know people that use it and have happy, healthy relationships, I know others that have ruined relationships with it, and then I know a third group that had long given up on a physical relationship with their spouse and are using it as a necessary release (no pun intended).
Good luck with a record breaking amount of comments Geoff. Maybe if you added a few pictures as examples of what the government would censor 😉
“by and large the medical and mental health communities have not produced any evidence or conviction that “porn addiction” even exists,”
The American Psychiatric Association, not known for being squeemish or moralistic about sexual issues, has proposed revising the DSM to include in DSM-5 the diagnosis of “hypersexuality”–i.e., sex addiction, which includes compulsive use of pornography. Some of the studies, research, and literature in the area are referenced in the notes to the draft. http://www.dsm5.org/ProposedRevisions/Pages/proposedrevision.aspx?rid=415 Most therapists today accept and treat seriously this disorder, under whichever name one prefers. More information is found in this article from the Archives of Sexual Behavior. http://www.dsm5.org/Documents/Sex%20and%20GID%20Lit%20Reviews/Paraphilias/KAFKAHD.pdf
Geoff,
I understand the reasons why you oppose doing this in the U.S., but I think you are wrong. I agree with Adam.
Unlike Adam, I think I can effectively refute all of your arguments for opposition.
Here are what I think are your main arguments:
1. The cost of being forced to install and maintaining filtering software is prohibitive
2. Bureaucrats with new enforcement powers
3. Pornographers would simply move their content to servers outside the U.S. (like gambling sites)
4. Pornographers would switch IP addresses to avoid being blocked.
5.Existing client-side software is more effective.
6. It’s the parent’s responsibility
7. It opens the door for further government meddling in Internet content
I want to clarify that we’re not talking about Hosting companies that host website data. We’re talking about the Internet Service Provider companies with which businesses and individuals contract to have access to the Internet (like Comcast or AT&T).
Re: Argument #1- Cost
The law would merely mandate that ISPs filter pornographic content at the ISP level by default, unless the customer explicitly asks for it to be available. The law would not dictate the software, nor determine what should be blocked. ISP companies would contract with other companies who already provide filtering software to end users. This really just opens up the business-to-business market for existing and future filtering companies. So it wouldn’t cost as much, and the money would be going into the market not a black hole of lost expenses.
Most ISPs already have software deployment and upgrade systems for all their servers, usually employing virtualization, so deployment really wouldn’t be as big a deal as you make it out to be. Bandwidth and processing time would likely be a bigger hurdle, but not much.
Re: Argument #2 – Bureaucrats with new enforcement powers
The law doesn’t have to make it the job of the government. The law could simply say that ISPs need to be accredited by an independent third party, and that one of the requirements for accreditation is that the ISP have filtering software installed at the ISP level, and filtering enabled by default with an opt out for those who don’t want it.
I work for an Internet Certificate Authority (wikipedia). Although not an ISP, the company I work for provides a service that is equally essential for the Internet to properly function. We get audited every year by a third party accreditation organization. If we fail the audit, then we lose the trust of the browser software providers and go out of business. Internet Payment Gateway companies that process credit card payments online have similar requirements. They have to meet PCI data security requirements by being audited by an intependent Quality Security Assessor.
The U.S. should employ a similar method regarding ISP filtering. Again, these other companies that already specialize in independent third-party accreditation in these other areas would simply start offering accreditation for ISP companies as well, to show they meet the standards defined by U.S. law. If needed, wave some business taxes for accredited companies. Any government regulation and enforcement moves to the smaller accreditation market and away from the ISPs themselves.
Re: Argument #3 – Pornographers moving to servers in foreign countries.
This is completely irrelevant. Regardless of where the server is located, the data has to pass through the local ISP to get to the end user. The ISP would be using the same IP Address/Domain Name blacklists used by the client end software that is already available. It will simply be checking domain names and IP addresses as they come through the pipe instead of at the faucet.
Re: Argument #4 – Pornographers would constantly change IP address to avoid filters
This is also largely irrelevant as well. Like any business, pornographers know that customers have to be able to find your business if you want to make money. That is why we use domain names instead of IP addresses. Regardless of how often or how many times the IP address changes, the DNS (Domain Name System) used by the Internet will point the domain name the the IP address where the content is located. The filter simply has to filter out the domain names as well as the IP addresses. And again, this is the same problem already faced by end user filtering software. The only reason why this is largely irrelevant and not completely irrelevant is that running the software at the ISP level might increase pornographers motivation to changed servers and domain names regularly, but doing so is costly and hurts their discoverability to customers.
Re: Argument #5 – Existing client-side software is more effective.
This is not true. As stated above, ISPs would likely be partnering with existing filtering companies, so they would be using the exact same blacklists and filtering algorithms as the existing end-user systems, and be just as effective. But, because they are filtering at the ISP instead of on the home computer (the pipe instead of the faucet), they are much harder to circumnavigate. Most filtering at the home level can be easily by-passed by a technology savvy teenager or adult. Even children with a knack for technology can get around them without too much trouble, even if you are using a DNS based filtering service set up on your router instead of on the computer itself. Heck, Geoff, unless you have taken extra special precautions, I could easily sit down at your Windows 7 Professional workstation, read the personal files on your computer, and surf the web, without even knowing your username and password, and without any filtering software that you might have installed on the computer itself. But most of the work arounds I can think of off-hand would not work at all if the filter were running at the ISP.
So ISP level filtering is much more effective.
Re: Argument #6 – It’s the parents’ repsonsability
I agree with the principle here. Parents have to be vigilant and involved. But, as Adam has already said, Parents’ shouldn’t have carefully opt out of default porn availability, adults who want to view pornography should have to purposefully opt in for it.
As an example, if you go down to the Orem Utah public library, you’ll find that certain books and periodicalls are not on the shelves. Instead, there is a place holder card or box that indicates that the book or magazine contains adult content and so it is available on request at the librarian’s desk. This prevents minors and the majority of adults from accessing this material unintentionally, but makes sure that it is still available, according to freedom of press and speech requirements.
Just because parents have the responsibility for what their children see and read, doesn’t mean that we should put all the hard core junk that is available on the library shelves so that parents have to chase their children around the whole time to make sure they don’t get into anything bad. Parents should be able to teach their kids how to use the library without worrying that their child is going to unintentionally discover something nasty next to the book they are looking for. And they should be able to send their teenagers alone to the library without worrying that while they are there they might check out the playboys when no one is looking.
Why shouldn’t that be the default for Internet Service as well?
Re: Argument #7 – it opens the door for government overreach
If the government is doing the auditing, providing the blacklists, and specifying the software, and enforcing it, then you would be right. But I think the accreditation, business-to-business, more decentralized system I have described would prevent the kind of overreach you fear. The government wouldn’t have anything to do with what is getting filtered, what software is used, or determining if companies were in compliance. All of that would be handled by independent, for-profit, competing companies, driven by market forces.
So, having addressed your arguments, what do you say, Geoff? Have I convinced you?
I think Adam Greenwood’s idea has merit, and I agree with J. Max Wilson that implementation is both doable and desireable.
If the Supreme Court wasn’t convinced that the Constitution actually was a suicide pact, this problem never would have happened. The court’s decision in Reno v. ACLU (1997) essentially created this problem.
Perhaps the Communications Decency Act was overly restrictive in some respects. But we have a democracy, and it could have been refined in the rough and tumble of politics in the years following. But instead we have the Supreme Court, mighty defenders of First Amendment absolutism, guaranteeing free access to pornography everywhere. No inconvenience allowed.
I am not sure, however, that making ISPs do intensive filtering on edge routers is the best way to address this problem, primarily for technical reasons.
If we were to do something practical, the very first thing we should do is require all sites within the reach of the law that serve pornographic material move to the “.xxx” TLD. Prohibit registration of such sites with any other TLD or any other unrestricted name resolution service.
Then (if the Supreme Court doesn’t wax suicidal again) require that all ISP DNS servers fail to resolve arbitrary “.xxx” lookups. If a user wants to resolve the address of a “.xxx” sites, require the ISP to route such DNS requests through a transparent proxy that keeps track of whether the requester has that TLD enabled or not. Resolve it if they do, return an error if they do not.
With the cooperation of other governments, within a few years this scheme would be rather effective without significant technical or economic overhead.
@Mark D.
Instead of forcing them to register on a .xxx TLD why not let them use whatever name they want as long as it is served over a designated Red Light District port number? I suggest port 616.
Then ISPs can just block all port 616 traffic by default unless the customer opts in to allow 616 red-light access.
J.Max, I think that idea has merit. However, a special purpose TLD has the advantage of clarifying the purpose of such sites from their URL, even for people who don’t have blocking turned on.
A special port would break compatibility with existing software. Browsers would have to be upgraded to get extra DNS information to know to use the port at all. Unless you made the sites include the port number in all their URLs of course, which would be more intrusive than making them change domains.
Brother Greenwood mentioned it already, but I wish to single out the final sentence of the Proclamation to the World: “We call upon responsible citizens and officers of government everywhere to promote those measures designed to maintain and strengthen the family as the fundamental unit of society.”
I take the inclusion of “officers of government” in that call to mean that the Quorum of the Twelve and the First Presidency felt that laws and actions of government are among the desired measures that ought to maintain and strengthen the family.
J Max, I am philosophically opposed to your position, but some of your techical points have merit. It is a very, very dangerous proposition to start having government intrusion in what ISPs provide to their customers. Also, you may underestimate how many IPSs there are out there. The cost of such an implementation would have to be passed on to the consumer. I cannot overstate how problematic I feel it is to have the government decide what content is appropriate and what is not.
Let me give you one example. If you go to the UK site for the Daily Mail, you will see all kinds of pictures of half-naked celebs, celebs in bikinis, etc. Would that be blocked? Would Victoria’s Secret be blocked, yes or no? How about Maxim? We know some Playboy content would be blocked? What about the articles?
Again, this is not something that government should be involved in.
Just to back up my point, during the riots in Egypt the first thing Mubarek’s goons did was turn off the internet.
Now there are goons in Congress wanting to give the government the power to turn off the internet during an “emergency.” Believe me, you do not want the government involved in the internet to this extent.
http://www.cbsnews.com/8301-501465_162-20029302-501465.html
What is it with Mormons and porn? Why do we keep talking about it incessantly? I fear, frankly, we are creating an unnatural interest in something that would otherwise attract much less notice. We can’t be the pornography police, except when our kids are young and under our control, and in the U.S. we can’t use the federal government to do the job for us either. Families I know who are not having problems talk to their kids at a young age, not just about pornography but about a variety of dangerous subjects, they do not make pornography seem exciting, they are willing to talk openly with their kids about sex and explain their morals and values to them, and they keep their kids focused on plenty of healthy, wholesome activities to keep them interested in the good things of life.
Aaron, I agree with you, but just for the record I believe this is the first time in six years that this web site has discussed porn in-depth, and mostly to discuss (in my case) the folly of censorship.
JMax, regarding your argument #2 on acreditation, I doubt very much that a law like this would come into effect without a new bureaucracy being created to monitor its effectiveness. Obamacare has dozens of new agencies — you don’t think this would be done without a new govt oversight group to make sure it is taking place as promised?
I favor the UK approach, which is similar to the approach the City of Phoenix takes with respect to its library computers. I agree with Geoff that allowing the government to regulate any content aspect of the internet is a dangerous thing. However, prior to the Supreme Court’s contruing the First Amendment widely enough to protect the vast majority of pornography, the United States legally prohibited pornography as obscenity, and while one can question whether some literature was wrongly banned, one cannot claim that political discourse or discourse in serious ideas was limited. Pornography was still available to those who sought it (just as illegal drugs are available to those who seek them today), but the risk of prosecution reduced the ready availabily (just as Prohibition did decrease significantly the use of alcohol). The UK approach does not criminalize non-child pornography. But it does make it more difficult for children to access it. And it makes it less likely for adults inadvertently to be exposed to it–which is a good thing.
Geoff B, it should be recognized that enabling this blocking is optional for the end customer so the level of government micromanagement required should be minimal.
The standard should be roughly the same as what generates a definite R for sexual content: nudity and anything worse, primarily. If you can’t legally walk down the street that way, and it isn’t incidental medical information, it shouldn’t be allowed on the unrestricted domains/ports or whatever. That is not a hard standard to decide if a question ever comes up.
I should add that unrestricted domains (like NetFlix) should be able to include movies typically rated “R” for sexual content (nudity) as long as payment is required. I believe “NC-17” and legally obscene stuff should be required to use the “.xxx” TLD regardless.
Omnipresent nudity is bad enough, but unrestricted access to sexual obscenities is the sort of thing that causes civilizations to wither and die. The amendment creating the CDA, which was far stricter (possibly too strict), passed the Senate 84-16. An overwhelming consensus that free access to this sort of stuff is harmful to minors in particular.
Geoff,
Re: your comment #15
I understand your concerns. I agree with you that the government should not be directly involved in deciding exactly what content is appropriate and what is not.
But in the system I have outlined, the government wouldn’t be directly deciding propriety at all. That would be the job of the competing independent filtering companies. One filtering company might block the daily mail and victoria’s secret. Another might not. People would be free to choose an ISP that filtered by default to the level that they prefer.
Also, I suspect that just like the current end-user solutions, there would be a variety of categories with baseline filters that each customer has enabled by default, but that could be tweaked by calling the ISP. So, just like they do now on their home solutions, individual customers could select to allow or disallow bikini, lingerie, hate group, gambling and other categories of content. And they would also be able to give the ISP a whitelist of exceptions, so they could disallow all lingerie sites with the exception of VS and daily mail if they wanted.
Again, the government would only be saying that ISPs had to provide a filtering solution with a baseline adult content filter enabled. What exactly should or shouldn’t be filtered by default would be left up to the market, and individuals would be able to adjust their filters according to preference. The default might be slightly different from one ISP to another, and even within different markets for a single ISP. For instance the default AT&T filter might be different for customers in Provo Utah than customers in San Francisco California.
And ultimately all content would be available to anyone who wants it.
Re: your comment #16
I wouldn’t support a government “emergency off switch” for the internet under any circumstances. That is a completely different issue and is irrelevant to this topic.
Re: your comment #19:
While ISP accreditation could be structured in a way that would require a government bureaucracy for oversight, I think it would be possible to do it without one. For example, we could look to make it work more like the Education Accreditation system in the U.S.
In most other countries educational accreditation is done by a government agency. But in the U.S. we have a peer-review quality assurance process performed by private membership associations independent of government.
I think it’s doable and desirable.
J Max, we may have reached an area of possible partial agreement.
If an ISP wants to voluntarily offer filtering to its customers as an option, I am in favor. For the record, I was a BIG customer of Cleanflix in the old days before the courts stepped in (stupidily imho) and put it out of business. It would be great if there were a nationwide ISP out there that offered the type of filtering you describe. In fact, I would be willing to help market the option and even try to get my company to offer it as an alternative (we are not in the retail marketplace, but instead enterprise and wholesale, but I think it is a viable product). I might even be willing to invest a little bit of money in an ISP that offered such filtering.
Note, however, that I am talking about *voluntary* programs in which the govt has no involvement whatsoever. This is the free market filling a market need.
I cannot imagine any scheme that would not involve some kind of government oversight. Once that oversight is in place, it is only a matter of time until the government extends it to other areas that it feels should be censored or controlled in one way or another.
There is an incredibly important political point here which desperately (in my opinion) needs to be enforced. Why do we have the Obamacare monstrosity in the first place? Such a nationwide scheme would never have been politically possible until the 1930s. And why? Why did the Supreme Court in the early and mid-1930s overturn so many of FDRs New Deal policies, causing the autocratic FDR to plan to pack the court? Because there is no provision in the Constitution for nationwide control of economic activity in such a way.
Here is what the Commerce Clause says: “Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Why was the commerce clause instituted? So that states could do business *with each other* which was not happening under the Articles of Confederation. Justice Marshall in 1824 said the commerce clause *only* had to do with commerce that touched more than one state. Interstate commerce was not the province of the Consitution, and indeed again the only point of this clause was to make sure that each state was not an island able to set up its own tariffs. In 1905, the Lochner decision make it clear that the federal government did NOT have the power to control commerce in a great many areas because these attempts to control commerce on a national level violated freedom of contract. This view held sway until 1937. A few cases in the late 1930s and the 1942 Wickard v. Filburn cases completely changed the interpretation of the commerce clause, and the result has been an ever-expanding *federal* government, helping create our current climate when a majority of congressmen (completely ignoring the Constitution) agree that the commerce clause allows the federal government to fine people for *not buying a product*.
I hope you get my point here. The commerce clause had a very limited meaning. Over time it has been twisted and turned so that now it means just about anything Congress wants it to mean.
So, what provision of the Consitution would allow Congress to control what is placed on the internet? Well, Adam G offers up…the Commerce Clause!!!
Adam went to law school — I did not. He could write rings around me, calling up cases I have never heard of, to complete his argument. But my point is a larger point: the text of the Constitution has to have some limits. It cannot mean anything we want it to mean 220 years later. Prohibiting the publication of certain stuff falls under decency statutes, which really are the province of the First Amendment. We have already gone down the road of having the Supreme Court spending hours and hours of porn to decide what is decent and what is not. The Supremes decided (wisely, imho) that it is too great a task.
If we want to control this type of content (which I personally do want to do in my home), we need to rely on the market and rely on voluntary efforts by companies wanting to fill a market need. We cannot involve the government in this enterprise in any way.
Geoff – I’m really ok with sending the porn jobs overseas. Really, it’s ok if they go to Russian with the Gambling companies. The point of a society which can enact laws through the voting/representation process is to determine what kind of societal rules and norms they ought to have.
This does not say we should take away someone’s liberty to do X. But it’s entirely reasonable for society to decide whether they want to regulate or flat out outlaw something like pornography. To say otherwise is to claim that society should have no determination about kind of moral standards it should uphold and that all free societies must naturally be “anything goes as long as you’re not killing people” societies.
Now, I see the difficulty in this position though, but I think it can be squared with other liberties. Free speech. Depicting sexual relationships in graphic detail is not a form of speech. It’s a form of deviant exhibitionism. That someone else enjoys participating in or viewing this kind of exhibitionism does not make it speech beyond regulation, in my thinking.
Guns…if we regulate or ban something as “non-violent” as pornography, why can we not ban firearms? Well, for one, one of these is in the bill or rights. The other is not. If you want an amendment for porn, go for it.
To me, it all has to come down to the question of, is pornography speech, which is most certainly covered under the bill of rights? Yes, we know there is certainly trouble with attempting to define what is and isn’t pornography (Justice Stewart – “I know it when I see it, and this case is not that”). But the fact of the matter is we deal with these issues with rating systems all the time. So yes, we do know it when we see it. The fact that 0.5% of the time there could be a questionable gray area, should not mean we throw out the other 99.5% in the name of “consistency”.
“Measures like this are the proverbial camel’s nose under the tent. ”
BTW – the government is going to continue to attempt regulating and controlling the internet, regardless of whatever happens to pornography. I’m confused. You say, if we let them control pornography, they will try to control the internet. And yet they are trying to control the internet now, without a ban on pornography. So which is it? Seems you’re arguing for the worst of both worlds, which is that eventually the government will gain further control over the internet, but at least we won’t have let it happen via locking down on pornography right!
C, today the government has almost zero control over the content of the internet, and we have even avoided allowing the govt to tax most Isps. I would like it to stay that way.
@Geoff #24
Good point Geoff. I agree with you that there is probably no authentic constitutional authority for the National government to do this.
So what about state initiatives? What if we were to get a sizable alliance of states, including Utah, Colorado, and Texas to pass state laws that require ISPs doing business in those states to filter baseline adult content at the ISP level by default, with customizable filtering for customers who want to tweak or remove filtering, and requiring that they be accredited by an independent third-party.
That would avoid the national constitutional authority problem, and largely your primary concerns.
It would have to be a big enough alliance that ISPs could not simply decide to stop doing business in the state to avoid the requirements.
It would also face a free speech trial before the courts. But so would a national law, so that shouldn’t dissuade anyone.
What do you think?
Geoff
Here’s the problem as I see it. I take what I guess is a Scalia approach to the constitution and the kinds of rules a society can call for. The constitution strictly prohibits us from doing certain things. Don’t like it, change the constitution via amendment, a process which is built into the constitution.
The reason why you don’t trust governmental “creeping” is because the government has ceased operating by it’s own clear defined rules and instead operates by ever-shifting rationale. So when we enact one law, you are worried they will use those motivations to do something else that was permitted under the law. It’s an appropriate worry. But I sort of see us in a failed state of “we the people” if we can’t trust ourselves to say one thing and the government will go and do another.
My approach is to return to establishing clear rules and allowing courts to handle some of those gray areas. Handling gray areas does not give the courts license to redefine the laws, however, unless they are blatantly unconstitutional.
Now certainly we have to apply the principles, to a certain degree, in the bill of rights to future conditions the framers could not have conceived. Free speech consisted of voice, letters, newspapers, and books in their time. Now it is extended to internet, phone, email, etc. But when society is confronted with new waves of innovation, particularly on a moral front, that aren’t specifically address in the constitution (prostitution, organ selling, pornography, assisted suicide, gay marriage) those societies should maintain their right to permit or disallow such activities.
In my view, it’s only because we’ve wandered so far from a “reasonable constitutionalists” view of the constitution that we no longer trust our neighbor or our representatives to do anything. That’s a shame.
FWIW, I agree with Geoff. Government can’t make us angels; only God can. The same government we empower to take away the rights of others will, sooner or later, be used to take away our rights.
One day, when the New Atheism has become the predominant view in America, someone will hit upon the idea that religion is harmful to children, and enact laws to prevent parents from indoctrinating their kids. That will be legal because of earlier efforts to use government to protect children from all the other bad things in the world.
Mike, that could be possible (banning religion). But as we have the 1st Amendment, which reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” the only way that could happen is by constitutional amendment. In my fantasy land, described above, what you are suggesting could not happen if we actually tried to fight in the marketplace of ideas to have the constitution be followed in a reasonable way. No mention of porn? Porn not really a form of speech? Well, then the people can pass laws through their representatives to regulate it. Meanwhile, religion is expressly mentioned, so its off limits unless a different set of rules (amendment) is followed.
I know most are relatively conservative around here and take a strong view of the constitution as it was written. So it seems strange that we put so little trust in it.
Pornography has been determined by the Supreme Court to fall under the First Amendment’s protection of free speech and free press, with limits only on obscene material (which get looser and looser every year). So claiming the First Amendment protects religion and not porn is not true, based on existing case history.
And if you think banning religious teaching of children is fantastic, consider that atheists in Europe are already attempting to do exactly that.
“I teach them correct principles and they govern themselves,” said Joseph. Wise words for any age.
C, actually, the Constitution is a document about enumerated powers, meaning that the Constitution is *only* about the powers that government has. All other rights belong to individual people and the states. Madison at first opposed a Bill of Rights because he felt that all other rights were inherent — that the people and the states had all rights not enumerated in the Constitution. This is why Article 1 says “herein granted.” The supposition was that the only rights government had were granted in the Constitution — all other rights were granted to the people or the states. This why we have a ninth and 10th amendment — they spell out that the rights *not mentioned* belong to the people and the states, meaning that the government has *no power* to infringe on peoples’ rights.
Over time, Madison saw how his vision of the Consitution was completely subverted by people who wanted to expand government even in his lifetime and he was very glad he had approved the Bill of Rights, because at least it made it clear that *all other rights* belonged to the people or the states. Well, no longer, now we feel that the rights belong mostly to the government, and even somebody as conservative as you (and I say that as a compliment) can write “The constitution strictly prohibits us from doing certain things.” This is simply not true. It prohibits the government from doing certain things *to us.* (like taking away our guns and quartering troops and taking away property for eminent domain without just compensation and searching our homes without a warrant).
JMax, at least your approach would be Constitutional if it were carried out by the individual states. I personally would vote against it in Colorado because I don’t think even a state govt should tell me what to do over the internet, but as I say there is a market opportunity for ISPs to offer filtering.
I agree with those who see porn censorship as perhaps politically, economically, or practically infeasible.
However, I am glad to hear about a discussion of porn that recognizes where the problem truly lies: unfiltered, anonymous internet access through an ever-increasing number of convenient devices.
I’ve heard it said that a porn addiction is largely built upon the confluence of these three As: affordability, anonymity, accessibility. Take any one of these away, and the addiction will likely crumble, or at least become much more manageable.
In our day, free, unfiltered, anonymous, and constant stimulation from the internet is addicting people to many different online activities, reducing productivity, concentration, and overall well being.
If we or our family has a problem, we must do something about this, but I’m not certain government is the answer. But I do think that as individuals, we should rise up and demand from the free market, more effective, cheap, accessible software, that we can tailor to our particular needs and values, and that cannot be circumvented by teens or addicts. We should be able to create a safe, digital framework tailored to a productive, moral lifestyle: setting personal limits we set for online time, prohibitions of our own personal definition for porn, browsing history records that go to accountability partners, access to our email only twice a day, etc.
I believe that just as technology got us into this problem, technology can get us out.
Geoff,
The state government wouldn’t be telling you what to do over the internet. It would simply be requiring ISPs to provide default filtering at the ISP level. You would still be absolutely free to remove or adjust the filters in order to do whatever you want over the internet.
In fact, when you called to sign up with an ISP the sales or service agent would simply say:
“By default our internet service filters out adult content. The filter can be easily customized to your preferences or even be removed completely. Would like to disable filtering on your account or leave it in place?”
“Would you like me to help you customize the filter now, or just accept the defaults and customize them later if you want to?”
So the whole thing would be handled during service activation, and if you didn’t want to be filtered you would just say so and not have filtered internet from the get-go.
How does that constitute and abridgment of your freedoms?
Because it’s the government telling businesses how to conduct their business, and what sort of content they must block by default. It’s rather innocuous by itself, but added to all the other regulations, it becomes invasive.
The government that governs least, governs best; a better solution would be to maximize the ways to access the Internet, and allow parents to choose ISPs that block content they don’t want.
At this point I’d like to give a shout-out to Open DNS, a free service that changes your computer or your home router’s DNS servers to a system that gives you an impressive amount of control over what types of content to allow. We’ve used it for several years in my home, and it’s been extraordinarily effective in blocking unwanted content.
http://www.opendns.com/familyshield
Geoff-
If all other rights belong to the people and the states then those people and the states have the right to regulate or restrict certain forms of content. Otherwise you’re claiming a right is not a right. This is not to say it must be done. But they (we) have a right to do what we want with our rights and we further have a right to undo what we have already done.
Regardless of what was said, I can not believe that any framer of the constitution considered everything permissible that was not expressly forbidden nor nothing permissible that was not enumerated in the Constitution. But regardless of what I believe, that approach is problematic as according to you it would prevent the people from pretty much doing anything that was not already covered in the document. And if it was already covered in the document, what need would there be for the people to decide anything, it was already decided!
Mike I and you can make whatever claims we want about the first amendment and there is not really much “truth” to either. I made my own argument, and you appealed to authority to end the debate. Might as well as Roe v. Wade is permanently settled (perhaps it is). Might as well have said Brown v. Board of Education need not be argued since Plessy v. Ferguson already decided the matter according to the Supreme Court.
I guess the broader point I make… we get upset when activists on both sides twist the constitution to mean whatever they want. Then we go and give them the high ground and say we can’t trust the constitution because there is a slippery slope to every law handling a specific situation. If you don’t give it the value it has and expect it to be meaningless it will be treated as meaningless. We expect a law saying X only applies to X and cut out any attempts to do more than that I don’t see how we can expect a law regulating or restricting pornography could be construed to ban religion or regulate satire on the internet. Yes, some people would make that argument, but only because we have presumed over decades that those kinds of arguments are being made and won.
I freely admit that what I suggest would not be applicable in the current situation, but I think the current logic followed for the past 40 years of “don’t do anything important because they might make it worse” is not leading to a better America. In fact, it seems to be trending to what our worst imagination is anyway. See recent rulings on Lawrence/Texas, which say, “this is not to imply that gay marriage is ok” and a few months later we have a judge using that same ruling to justify gay marriage. You get what you expect.
So by all means, let’s stop pretend we’ll encroaching government regulation by allowing a bonanza of porn and what you’ll get a bonanza of porn and encroaching regulation.
“let’s stop pretend we’ll encroaching government regulation”
to
let’s stop pretending we’ll end encroaching government regulation
“So what about state initiatives? What if we were to get a sizable alliance of states, including Utah, Colorado, and Texas to pass state laws that require ISPs doing business in those states to filter baseline adult content at the ISP level by default, with customizable filtering for customers who want to tweak or remove filtering, and requiring that they be accredited by an independent third-party.”
There are already ISPs that offer this, why do we need a law telling companies they have to do it? If it’s actually what parents want these companies should thrive and soon every ISP will offer it except a few that cater to porn users.
And I’ll second Mike’s recommendation of Open DNS. It’s free and it lets you decide what your kids will see instead of relying on the ISP’s interpretation of pornography.
There are already ISPs that offer this, why do we need a law telling companies they have to do it?
Because no one has a wide choice of ISPs anymore?
If you are very lucky you may be able to choose from one DSL company, one cable company, and one fixed wireless company. And none of them are likely to offer the option you speak of. Off hand, I don’t know any that do anymore.
This wasn’t always the case, but the FCC dreamed up the idea a few years back that Title II of the Communications Act shouldn’t actually apply to broadband internet service, putting hundreds of DSL ISPs out of business.
DSL internet access used to be based on what is essentially a permanent virtual circuit between you and your ISP. And you could pick which one. Now that virtual circuit generally only goes one place – to the ISP run by the local phone company.
The FCC took the level playing field for ISPs established in 1996 and threw it in the trash, allowing the phone company to leverage a monopoly in access links into a duopoly position in wireline Internet access, along with the local cable company, another government dependency that likes to pretend it is the acme of free market capitalism.
Well, like the New York Times, Adam Greenwood continues to serve as a negative barometer for the sane side in most debates. Putting aside the child protection red herring, while one can make rational arguments against porn viewing, such as the viewer participating in the continued corruption of the porn makers, distributors, etc., most everything here is just over the top ridiculous, like nonsense about porn and sex addiction. Healthy humans instinctively seek sex as much as food, water, clothing and shelter for an obvious reason. It’s God’s will. Get over it.
“Putting aside the child protection red herring…”
Whoa!
IMHO, the plea to “do it for the children!” has been the impetus for some awfully bad legislation. So I would agree that protecting children is a red herring here — parents are still the best decision makers.
Mike,
Nobody here is advocating taking the decision making away from parents or adult individuals in the name of protecting children.
For parents, it would be exactly like using Open DNS (which I also recommend by the way) except that:
1. The filter would be on by default when you signed up for an Internet Service, without any need to install or upgrade.
2. The filtering would happen at the ISP instead of on your local machine or network, making it much harder to circumvent. (Pipes vs Faucet)
That’s it, as far as parents are concerned. The parents would decide whether or not to keep the default filter, remove it, or customize it according to their best judgement for their family.
As we’ve already established, what you and Geoff object to are laws that tell Businesses, like ISPs, how they have to do business. That is a completely different issue.
Mike, Geoff, in your view, is there anything that the government can legitimately enforce upon businesses?
How about State laws that restrict child labor? Can the state government do that?
How about laws penalizing businesses that hire illegal immigrants? (Leaving aside immigration policy)
How about city safety codes for new construction that force contractors to build according to certain standards? Is that legit?
If any of these laws are legitimate, in your view, please explain why a state law requiring default filtering at the ISP level would not be legitimate.
I just want to say, I find it despicable Marriott Corp. was, until just recently, a big distributer of porn in the US. Given the strong statements given by our Church leaders (really just basic morality), Marriott Corp should have taken the lead in keeping their hotels family friendly by not offering porn to their guests. I find it cowardly they finally have discontinued this practice ONLY because their porn channels are no longer profitable. The Marriott family should be ashamed of themselves!
Thank you for letting me get that off my chest!
The advantage of requiring pornographic and obscene websites onto something like the .xxx TLD is that it would make running such a service much simpler and much less expensive. ISPs wouldn’t have to subscribe to a service inevitably employing young adults to classify tens of thousands of obscene websites, inevitably scarring them in the process. Neither would families.
On further reflection on this issue and after reading the Constitution again I thought I’d let Geoff know that he’s lead me to change my opinion. If Congress and the American people want to regulate/ban/require X the process (as it seems to me) would be to have the normal amendment process happen.
If Congress/People wants to ban/regulate pornography/abortion/guns/insurance, etc. congress would pass an Amendment stating,
“The Congress of the United States is given power to regulate, restrict or promote (guns/abortion/insurance, etc) for the general welfare of the United States.”
Then the people in the states would decide whether or not they want congress to have that power and vote on it.
Then the Congress can return to the issue and as representatives of the people craft a law which is permissible under the new amendment. If the people don’t like it, vote them out and change it.
This would require of course nearly all congressional laws past in the last 150+ years to be repealed and re-proposed as Amendments for the states/people to decide whether or not to ratify. The plus side in my thinking is that would return governmental power to the people and it really would do away with this concept of “implied consent” and making the government govern via actual consent.
I assume this was not followed in the years past because it became an unwieldy and slow moving process which could take a decade. It would move much faster now, and has the benefit of not being so fickle as direct popular vote on any issue, but still works through the normal checks and balances. We would potentially see a lot more amendments and “gumming up” of the constitution if we did that, but we do this now and just interpret it through the general welfare or commerce clause.
“This would require of course nearly all congressional laws past in the last 150+ years to be repealed and re-proposed as Amendments”
Should be
“This would require of course nearly all congressional laws past in the last 150+ years to be repealed and the foundations of those laws re-proposed IN PRINCIPLE as Amendments”
c: I don’t know if you’re being sarcastic or serious in your last two comments, but, FWIW, I completely agree with your conclusion.
C: I hope you’re not being sarcastic, because I would like to think that I am incredibly persuasive and incisive. In a perfect world, we could overturn the unconstitutional stuff. In the real world, we could instead stop the madness and allow the courts to slowly, deliberately get back to interpreting the Constitution as it was written.
I dont in fact concur with you but will investigate back again later to look at your response.