Excerpts of Jeffrey Rosen's article in The New Yorker, August 7, 1995.
The debunking of Time's lurid story about pornography in cyberspace began, appropriately, in cyberspace itself. The cover of the July 3rd issue featured a horrified tot with an Edvard Munch expression staring at a computer screen. "CYBERPORN: EXCLUSIVE," the headline announced. "A new study shows how pervasive and wild it really is. Can we protect our kids - and free speech?"
Almost immediately, the study, conducted by Marty Rimm, a thirty-year-old undergraduate at Carnegie Mellon University, and published in the Georgetown Law Review, was attacked on the Internet as tendentious and unreliable. The study claimed that "83.5% of all images posted in the Usenet are pornographic." In fact, critics noted, pornographic images represent only three percent of all messages on the Usenet, a global network of discussion groups, and less than half of one percent of all images on the Internet as a whole.
Rimm had inflated the figure by focusing on a subset of private bulletin boards that specialize in pornography and are generally accessible only to paying adult subscribers.
Rimm's credibility collapsed entirely when he acknowledged that last March he had used the data from his Carnegie Mellon study for what was to have been an illustrated paperback entitled "The Pornographer's Handbook: How to Exploit Women, Dupe Men and Make Lots of Money" and designed to help operators of adult bulletin boards market their wares more effectively. [In late July, 1995] Rimm was dropped as an expert witness from the [U.S.] Senate Judiciary Committee hearing on children and cyberpornography.
The unmasking of Marty Rimm was entertaining; but what, at this peculiar moment in the free-speech wars, had impelled both a respectable magazine and a scholarly journal to promote the prurient obsessions of a youthful huckster? Part of the anxiety about cyberspace, of course, is predictably Luddite: previous shifts in communications technology, such as the rise of mass-market tabloids in the nineteen-twenties, of network broadcasting in the nineteen-fifties. and of videos and cable TV in the mid-nineteen-eighties, were similarly accompanied by public hysteria about the proliferation of indecency.
Despite predictable anxieties and unlikely alliances, the old battles may soon be overtaken by new technologies.
As a spate of new books about the [U.S. Constitution's] First Amendment suggests, the explosion of new media outlets mean that centralized proposals to regulate speech are increasingly doomed to fail in practice, no matter how cogently they are framed in theory. It will be hard to police the "marketplace of ideas" when there are so many more markets to monitor.
And if existing free-speech doctrine is still founded on the utopian premises of the nineteen-twenties, epitomized by [U.S. Supreme Court] Justice Holmes's metaphor of a perfectly deregulated "free trade in ideas," the new media technologies may fulfill Holmes's vision dramatically. Holmes's ideal world - where speech is cheap and money is no barrier to speaking; where individual listeners can select precisely what they want to hear and block out precisely what offends them; and where offensive ideas can be easily expressed and just as easily answered - will seem less fanciful in the electronic world of the future than it does in the paint and broadcast world of today.
On June 14th , the [U.S.] Senate approved, by a vote of eighty-four to sixteen, the Communications Decency Act of 1995, sponsored by Senator Exon, Democrat of Nebraska. The bill would impose hundred-thousand-dollar fines or criminal penalties of two years in prison on anyone who "knowingly... makes available any indecent communications... to any person under 18 years of age."
The Exon bill would also impose criminal penalties on anyone who uses "obscene, lewd, lascivious, filthy, or indecent" communications "with intent to annoy, abuse, threaten, or harass another person." A citizen offended by the Exon bill who sent an obscene E-mail message to annoy Senator Exon could thus be harshly punished, although the same message shouted at Senator Exon on the street would be constitutionally protected. At the end of June, [Speaker of the U.S. House of Representatives] Newt Gingrich, to his great credit, pronounced the Exon bill clearly unconstitutional.
Far better than the Exon bill is the alternative that President Clinton has endorsed: software filters that would enable parents to block out whatever words and images they think are not fit for their children to read.
In a recent issue of the Yale Law Journal devoted to the new media and the First Amendment, Eugene Volokh, of University of California, Los Angeles, argues that the emerging media technologies will dramatically reduce the cost of distributing speech over the airwaves and cables. And the resulting "cheap speech," as Volokh puts it, will be harder to regulate. As control shifts away from intermediaries, such as publishers, network programmers, and bookstore and music-store owners, to the speakers and listeners themselves, consumers and politicians will find it harder to use their market power to stifle speech.
In short, with the proliferation of distribution points, it will be increasingly easy to make end runs around the censors. Some Internet providers, for example, have a policy of refusing to publish dirty words. America Online reproduced an article of mine that discussed the landmark case in which the Supreme Court held that a citizen had a First Amendment right to wear a jacket emblazoned with the words "Fuck the Draft" in a Los Angeles courtroom.
But in the reproduction the world "Fuck" was discreetly expunged. As a private provider, America Online is free to set its own standards of civility, but it has no monopoly on access to the Internet. If I were determined to restore the piece to its unbowdlerized form, I could post it on the more freewheeling World Wide Web, and it would be easily accessible on five continents.
Precisely because the emerging media technologies are so hard to censor, the censors are redoubling their efforts. In 1994, the federal government filed obscenity charges against the Amateur Action Bulletin Board, an Internet site operated by Robert and Carleen Thomas, where consenting adult subscribers pay to download dirty pictures. (Amateur Action was also the source of Marty Rimm's most lurid data).
The images in question were uploaded in the heart of Bible Belt, in Memphis, Tennessee. The Thomases claim that the government entrapped them, enlisting a postal inspector to download the pictures in Memphis in order to take advantage of Memphis's conservative "community standards." After a weeklong trial, a Memphis jury found that the pictures violated Memphis community standards, and convicted the Thomases of transmitting obscenity through interstate phone lines. The case, which is now being appealed, reveals the incoherence of the community-standards test itself.
In an age in which cyberspace has broken down physical and geographic boundaries, it makes little sense to allow the morals of a local community to dictate what is acceptable for the "virtual community" of consenting individual viewers.
The Internet, after all, is inherently atomized: when communities form, they are provisional. In this sense cyberspace promises a kind of electronic Emersoniansim, in which all matters of public concern are subject to the scrutiny of individual dissenters. (Oppose the "strait prison-like limits of the Actual," Emerson said. "The old, halt, numb, bedrid world must ever be plagued with the incessant soul" of protest.)
And cyberspace also promises to correct some of the market failures of democracy itself. Since democracy, as Robert Post argues, cannot function unless all citizens are regarded as fully autonomous individuals rather than as faceless members of competing communities, cyberspace is a powerful practical and theoretical rejoinder to the collectives who make the mistake of trying to impose centralized controls on public discourse in order to improve its "quality and diversity."
The fact that Justice Holmes's ideal vision of the First Amendment, as an unruly and deregulated marketplace of ideas, seems increasingly inevitable does not mean that it will be entirely palatable. Perhaps, as citizens become less and less dependent on network broadcasts and magazine editors to select what they read and hear, they will selfishly retreat into the solipsism of narrowcasting, into cyberpornography, or silly sitcoms, or discussion groups about Jews in space.
Perhaps they will refuse to take full advantage of the new interactive technologies, and will show little interest in deliberating about the worthy civic issues that regulators would prefer to have them discuss. But this is, of course, a free country, and it has never been freer, thanks to the epidemic of cheap speech spreading raucously across the globe.