Marjorie Heins - FROM PLATO TO PORNO: "NOT IN FRONT OF THE CHILDREN"
By Ed Rampell
One of the American Civil Liberties Union attorneys, who defeated the 1996 pro-Internet censorship Communications Decency Act, has written an indispensable book for all adult webmasters, content providers, and lovers of free speech. Marjorie Hein's "Not in Front of the Children, 'Indecency,' Censorship, and the Innocence of Youth" joins the growing canon of literature recounting repression and free expression in cyberspace that includes: ACLU Pres. Nadine Strossen's "Defending Pornography, Free Speech, Sex, and the Fight for Womens' Rights," Jeffrey Rosen's "The Unwanted Gaze, The Destruction of Privacy in America," and Fred Lane's "Obscene Profits, The Entrepreneurs of Pornography in the Cyber Age."
From its witty cover - Eros apparently pulling the sheets from the crotch of a nude woman in incorrigible Correggio's 1531 painting "Danae" is literally labeled, with ersatz parental advisories - to its well-researched text, "Not in Front of the Children" (Hill and Wang, 2001, $30) is always insightful and thought-provoking. Heins explores the history of censorship of aesthetic and sexual expression, from Plato to porno, antiquity to the Internet, the Platonic allegory of the cave to 1998's Child Online Protection Act. The book is a primer on landmark free speech court cases, from print, to comics, to radio, to movies, to television, to the Web- including the 1996 CDA and Playboy v. United States struggles (Heins was a courtroom gladiator in both), Sen. John McCain's Children's Internet Protection Act, and COPA.
Using the Socratic method, Heins boldly challenges societal assumptions regarding "harm to minors" standards, statutes, and taboo's, from ancient Greece, to Victorian England, to 21st century, wired America. Along the way, she raises questions regarding the definitions and usage of terms often used interchangeably - "obscenity," "indecency," "patently offensive," and "pornography" - usually invoked in the name of "protecting the children."
First Amendment Champion
The author, whose consciousness was forged in the cauldron of the sizzling sixties, is well suited to illuminate these weighty issues. Brooklyn-born Heins, received her B.A. from Cornell University in 1967, and graduated 1978, magna cum laude, from Harvard Law School. According to the National Coalition Against Censorship's Web site (www.ncac.org), where there's a link for her book), Marjorie Heins is director of the Free Expression Policy Project at NCAC, founded in 1974 as "an alliance of 50 national non-profit organizations, including literary, artistic, religious, educational, professional, labor, and civil liberties groups. United by a conviction that freedom of thought, inquiry, and expression must be defended, [NCAC] work[s] to educate... members and the public at large about the dangers of censorship and how to oppose them (ACLU is a member)."
According to the Feminists for Free Expression Web site (www.ffeusa.org), Heins was Director and Staff Counsel for the American Civil Liberties Union Arts, which provides legal assistance to artists and arts organizations whose First Amendment rights are jeopardized. Heins served as staff counsel for the Civil Liberties Union of Massachusetts, chief of the Civil Rights Division in the Office of the Attorney General of Massachusetts, and as a visiting professor at Boston College Law School. Her books include 1993's "Sex, Sin and Blasphemy: A Guide to America's Censorship Wars." In 1991 she received the Luther McNair award for significant contributions to civil liberties from the Civil Liberties Union of Massachusetts, and in 1992 and 1993 was designated a "First Amendment Hero" by the Boston Coalition for Freedom of Expression. As mentioned, Heins was a participant on the legal teams which prevailed in ACLU v. Reno, which struck down the unconstitutional CDA, and Playboy Channel's "signal bleed" case, regarding cable TV channels which, Heins writes, "partially scrambled images of a nude woman caressing herself" and "orgiastic moans and groans."
Censorship's Source
Heins brings her sixties civil libertarian sensibility to "Not In Front of the Children." She argues that throughout the millennia, those who sought to suppress Greek dramas and epic poetry, Boccaccio's "Decameron," Chaucer's "The Canterbury Tales," Shakespeare's "Romeo and Juliet," Twain's "Huckleberry Finn," Joyce's "Ulysses," Miller's "Tropic of Cancer," Salinger's "Catcher in the Rye," Ginsberg's "Howl," Mae West, Batman, George Carlin, Linda Lovelace, Joycelyn Elders, Bob Guccione, Bianca's Smut Shack, etc., did so under the guise of preventing "harm-to-minors."
Heins traces Western civilization's censorship source directly to the 4th century B.C. Greek philosopher Plato, in particular, his "Republic," a prescription for a perfect state run by wise, all-knowing "philosopher kings." In order to attain this enlightened ideal, Plato advocated censoring, for example, Homer, author of the world's first two novels, "The Iliad" and "The Odyssey." Plato wrote in his "Republic": "A young person cannot judge what is allegorical and what is literal; anything that he receives into his mind at that age is likely to become indelible and unalterable; and therefore it is most important that the tales which the young first hear should be models of virtuous thoughts."
Intriguingly, Heins points out that U.S. Court of Appeal's judges cited the above passage in ruling against academic freedom, in the 1998's Boring v. Buncombe County Board of Education case (North Carolina high school drama teacher Margaret Boring was transferred to a middle school for selecting a play dealing with gay, out-of-wedlock pregnancy, and divorce themes). The fact that justices would quote Plato - the philosophical founder of censorship - 2,400 years after his death - shows the philosopher's continual sway over Western thought and jurisprudence.
To Deprave and Corrupt
In the mid-19th century British Hicklin case, Chief Justice Alexander Cockburn found that the standard for judging content "was whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such moral influences and into whose hands a publication of this sort may fall." By the then-contemporary property and inheritance laws, these hands belonged to "servants, the mentally deficient, women, or minors," Heins writes. Class and gender progress leave children as today's main protected category.
However, Heins counters that the stated purpose of preventing children from being "robbed of their innocence" is based on "unexamined assumptions." She contends: "the rarely asked question remains, in what sense is it harmful? And does it justify censorship?" "Not In Front of the Children" also questions who will make these judgments, and notes that it's rarely, if ever, minors themselves. Heins also points out that the definition of "child" varies and is elastic, often extending as far as 17 years of age.
In an interview with Klixxx, Heins groused that "many reviewers of 'Not in Front of the Children' can't get past their very strong assumptions that society really should prevent kids from viewing certain material. Al Goldstein's cable access TV show 'Midnight Blue' [which, she notes in her book, Sen. Jesse Helms singled out in the Senate] is gross and tasteless - but is it harmful?" Heins asks.
Heins goes on to challenge and debunk much of the "media effects" literature, such as studies concerning the impact of TV violence on youth, and pornography research. The author repeatedly raises the issue of whether art/media generates "catharsis," as Aristotle maintained in his "Poetics," or "imitation," as many advocates of restricting content claim.
Cyber Censors
Significantly, for adult Webmasters, content providers, and surfers, Hein's long view of history brings these millennia-long arguments right up to the Cyber Age. In addition to delineating key cases relating to online erotica, such as CDA, COPA, and CIPA, "Not In Front of the Children" tackles so-called "less burdensome alternatives" in the arena of cyber censoring. Heins is extremely critical of what she dubs "the perils of filtering." Chapter eight, "Filtering Fever," in addition to other portions of her book, are devoted to this topic.
Blocking and rating software companies have Orwellian monickers, such as "CyberSnoop," "Cyber Patrol," "CYBERsitter," "SafeSurf," "SurfWatch," "X-Stop," "Net Shepherd," "Net Nanny," and "GuardiaNet" - which vowed to "make your PC like Fort Knox." Heins writes the American Library complains, "rating/filtering programs rely either on mindless keyword-based blocking or on subjective, private corporate judgments about offensiveness..." The author argues that Internet filtering "entailed massive censorship risks of its own," and is "vastly over-inclusive... they did not distinguish pornography... from other information, discussion, literature, or art..."
"Not In Front of the Children" provides many instructive and droll examples of the overly broad nature of these value judgment and keyword-based blockage systems. "Frequently ludicrous results: eliminat[ed] access to sites... that mentioned the word... 'sex' (as in 'Middlesex County' or 'Anne Sexton')," and "the NASA Web site on exploring Mars because the address (www.marsexpl.htm) contained the letters SEX," plus "sextant, for math." Similarly, SuperBowlXXX.com gets filtered out. Sites and information pertaining to the ACLU, Planned Parenthood, Human Rights Watch, Dr. Seuss, Dick Armey, pussywillows, are all blocked by various software, as are sites "critical of filtering software... and their products," Heins points out.
Heins claims the sheer proliferation of material online makes it prohibitively expensive for a ratings system to be effective. "The Web changes every day," she says. Heins likewise condemns "whitelisting," defining it as "a polite term for mechanisms that eliminated the Internet from computers by blocking all of it, except for preselected 'safe' sites." She also quotes from the ACLU's "Fahrenheit 451.2: Is Cyberspace Burning?" that "quirky and idiosyncratic speech... [can be] made invisible by the search engines."
The civil liberties attorney condemns censorware as "very stupid technology" that's "inevitably mindless." Heins goes on to criticize Sen. McCain's Children's Internet Protection Act, which Clinton signed into law in late 2000. CIPA mandates that schools and libraries receiving federal funding will install and operate filters on their computers. Given the vast amount of information that is thereby arguably blocked from school and library computers, Heins believes CIPA is discriminatory against "lower income kids who don't have computers at homes which aren't filtered," and expands the digital divide between Web-haves and have-nots.
Regarding self-regulation, in "Not In Front of the Children" she maintains, "Self-rating was the only practical alternative to mindless keyword-based blocking." As for the issues of industry age verification systems and explicit free sites, which minors can log onto, Heins says these are "business judgments for the adult Internet. I don't feel comfortable giving business advice." However, she warns hardcore free sites: "If the Supreme Court upholds the Child Online Protection Act, as opposed to striking it down, as the lower court did, then these free adult sites are definitely going to need legal advice," because they could be considered to be providing "harmful-to-minors" content.
Updating legal issues regarding online free expression, Heins says that as of this writing, the CDA was ruled unconstitutional. Due to what Heins calls "constitutional defects," CDA's successor, COPA, has also been ruled against in the courts, but the government is appealing that decision before the U.S. Supreme Court. Additionally, CIPA is being legally challenged in a lower court in Philadelphia.
From Virtuous to Virtual Models of Thought
Child protection provides "the justification for restrictions that affect adults as well," and "reducing the adult population to a level of purity deemed necessary for a child," Heins writes. Her book notes, "the unconstitutional effect of reducing adults to reading or publishing only what was fit for children..." In a 1913 obscenity legal opinion, federal Judge Learned Hand found: "It seems hardly likely that we are... to be content, to reduce our treatment of sex to the standard of a child's library in the supposed interest of a salacious few." And vis-a-vis CIPA, Heins states, "Adults use libraries, too."
"Not In Front of the Children" seems to indicate that organizations, such as Pat Robertson's Christian Coalition, the Family Research Council, and Donna Rice Hugh's Enough Is Enough have ulterior motives: using harmful-to-minors arguments as a way to impose one group's morality and ideology on society as a whole. These usually right-wing ideologues seek to apply their agenda to non-minors, so that the World Wide Web's most progressive jurisdiction will have to abide by the most reactionary jurisdiction's standards. As Electronic Privacy Information Center director Marc Rotenberg proclaimed: "The fundamental purpose of a rating system is to allow one person to decide what information another person may receive." Time Magazine describes CYBERsitter as "the most aggressively conservative filtering program," blocking sites for the National Organization of Women and gay information.
Heins argues that, "removal decisions... under the First Amendment, cannot be ideologically motivated." Like cinema before it, the Internet is a Rodney Dangerfield medium seeking First Amendment respect. From 1934 to 1988, Hollywood self-censored movies with a restrictive Production Code, and unlike print, movies were not considered to have the same free speech guarantees. But the Net is getting there. Heins states that Supreme Court Justice "John Paul Stevens's majority opinion [in the CDA case] rejected the Justice Department's argument that cyberspace should enjoy less First Amendment protection than books, magazines, or movies."
In his legal opinion, Judge Stewart Dalzell (part of the Third Circuit three judge panel that struck down the CDA on June 11, 1996), called the Internet "the most participatory form of mass speech yet developed," which therefore, "deserves the highest protection from governmental intrusion." Dalzell added, "The strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects... Regulations that 'drive certain ideas or viewpoints from the marketplace' for children's benefit... risk destroying the very 'political system and cultural life'... they will inherit when they come of age." When Judge Lowell Reed, Jr. invalidated COPA in his February 1999 decision, he likewise suggested: "Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."
And in the Playboy case, Supreme Court Justice Ruth Bader Ginsburg questioned the "idea that the government is a sort of super-parent."
Civil Libertine?
Does Heins' disavowal of Web censorship mean she's a complete moral relativist? "That would be a misreading of my book," the author insists, "I'm not a First Amendment absolutist. I'm willing to consider censorship, where harm is caused by speech, such as racist, anti-Semitic, terrorist, and genocidal [hate] speech, rather than sex."
But the divorced mother of two grown children hastens to add, "Material such as Goldstein's "Midnight Blue" is certainly not edifying, and I'm not advocating subjecting kids to hardcore content." Regarding kiddie porn, early in "Not In Front of the Children," Heins clarifies, "Child pornography involves actual physical abuse, not exposure to words, images, or ideas." And in her conclusion she comments: "Exploring alternatives to censorship is not meant to suggest that a diet of slasher films and televised sex acts is an acceptable idea for children or adolescents."
Instead of state-imposed censorship, Heins argues parents, not the government, should determine their children's online habits. She favors "sexuality education," and cites studies claiming children exposed to sexual information are more unlikely to practice unsafe sex and have unplanned for children. Heins also espouses, "the social-cognitive view of human learning," "media literacy programs," "critical thinking," "youth arts programs," and "nonviolent dispute resolution" as productive, long term, solutions to issues raised by children and cybersex.
From Plato to the Pentagon/Twin Towers blitzes, the impulse to censor is still very much with us. Shortly following Terror Tuesday, the Texas-based advertising/media company Clear Channel reportedly proposed that a list of songs with "questionable content" be banned by its radio stations, including: John Lennon's "Imagine" and Simon and Garfunkel's "Bridge Over Troubled Waters." Defense Secretary Donald Rumsfeld demanded greater restrictions regarding classified information, while Attorney General John Ashcroft called for expanded wiretapping powers and the like. Heins counsels this could have "spillover effects" impacting the anonymity online erotica largely depends on, and more. "Certainly, any increased surveillance measures, once that kind of latitude is put in place, can be used by law enforcement against speakers other than the ones who are the original targets. If the government has enhanced surveillance powers, they're likely to use them, when they get around to it, against those consuming sexually explicit entertainment, through acquiring information about people's identities, and having the ability to conduct investigations without the usual requirements of probable cause," Heins warns.
"Cyber-tarians" and all friends of free speech will find "Not in Front of the Children" to be a great read - the literary equivalent of great sex.
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