Nadine Strossen, president of the American Civil Liberties Union, professor of law at New York Law School, and twice named by the National Law Review as among "The 100 Most Influential Lawyers in America," gave a speech to a crowded Hamilton College Chapel on Feb. 28 as part of the Levitt Center's Age of Information Series. Strossen discussed the problems of government intervention to censor media and emphasized the need for individual liberty.
Noting that new forms of media have "always triggered calls for censorship," in which the most censored type of expression "has always been sexual expression," Strossen argued against recent attempts by the federal government to regulate the Internet. She first referenced the recent restrictions on indecent speech installed by the FCC after the "brouhaha" of Janet Jackson's "wardrobe malfunction" exposing her breast at the 2004 Super Bowl, which lead to an increase of fines for broadcasting a single indecent act to $325,000 per event. Strossen described this jump in fines as having a "chilling effect" on new expression, such as for a recent documentary by Martin Scorsese that was not aired because the use of expletives by musicians interviewed in the film would have invoked massive fines. Another example occurred during the Pacifica Radio celebration of the recent 50-year publishing anniversary of Allen Ginsberg's poem "Howl," which has become the "best-selling poem of all time" but could not be read on air by Pacifica Radio because fines for its profane language would "literally bankrupt" the company. These restrictions give a context for the passage of the Child Online Protection Act, which Strossen called a "badly misnamed" law that threatens online expression.
The Child Online Protection Act (COPA), passed by Congress with no dissenting votes in the Senate and a 400-35 vote in the House, suppresses online material that "any local community deems harmful to minors." Strossen attacked this law from many angles, pointing out that while such censoring laws are often politically popular, judges invariably overturn them to preserve constitutional guarantees of free speech. She warned that a law with such standards is always arbitrary, since it is "inherently impossible to come up with clear guidelines" for obscene conduct. This is exemplified by Supreme Court Justice Potter Stewart's famous characterization of obscenity when he said he could not define obscene material but "I know it when I see it." Strossen responded that every politician, police officer, prosecutor, and jury member sees "a different 'it'" when ruling on what material to allow, and trying to enact censorship into law is "arbitrary at best, discriminatory at worst."
Strossen went on to cite examples of discrimination through censorship, which she said disproportionally targets "relatively marginalized... groups" in part because current definitions of obscene or unprotected speech are defined in reference to what is "'normal and healthy.'" Members of the Lesbian-Gay-Bisexual-Transgender (LGBT) community, providers of sex education, contraceptive sellers, human rights defenders (who seek to document cases of sexual abuse), and artists are all plaintiffs in the ACLU's current case against the COPA law, because these groups are all potential targets for suppression. Strossen pointed out that online speech restrictions are in many cases harmful to minors, since they deny minors the opportunity to learn about safe sex practices, abortion, sexual harassment, and LGBT rights, where such knowledge can be lifesaving in matters such as reducing the spread of AIDS or preventing suicide. Conversely, the social science literature on the harms caused by online pornography is mixed, according to Strossen, and there is evidence that sexual expression has positive effects for older minors (above the age of consent but "infantilized" by being legally accorded the same rights as younger children).
Finally, Strossen suggested that censorship is simply unnecessary. She pointed to the recommendations of the two expert governmental commissions assigned to consider the topic of Internet content, both of which suggested that "social and educational strategies" to educate children about using the internet would be most effective, while opposing "any legal restrictions on online sexual expression." Furthermore, Strossen cited this legal battle and the ACLU's overall mission as "pro-family" because they seek to return responsibility for content to families to decide individually, rather than allowing the government to regulate content.
Strossen noted that victories for free speech can be hard to win, since the ACLU has won seven court cases against online censorship but the federal government has failed to enforce these rulings (in part because "there is literally no difference between the Republicans and the Democrats... they are all taking the same repressive position"). However, it is also possible to receive support from unexpected quarters; she cited a member of the Christian Coalition and mother of two who contacted her after seeing her on television in support of providing more rights for families to regulate content. Strossen summarized her position with a quote from Voltaire: "I may not agree with what you have to say, but I will defend to the death your right to say it."
This presentation was made possible through support from the Arthur Coleman Tuggle Lecture Fund.
-- by Kye Lippold '10
