Continued: "First Amendment Issues and the web: The Internet Porn Panic and Restricting Indecency in Cyberspace"

Dorothy Imrich Mullin

Limited systematic research has examined the extent and nature of each of these forms of online sexuality. There is evidence, albeit mostly anecdotal, that sex-related material of any kind (pictures, stories, or discussion) comprises only a small portion of the total Internet activity, and is thus less pervasive than much popular press and Congressional panic would suggest. It is possible that extreme forms, such as bestiality, may be more available online than in the local adult book store (certainly in discussion form such topics are readily available online). However, because the language of the recent indecency ban does not distinguish between the great diversity of communication forms available online, all of the sex-related messages described above (discussion as well as pictures) are likely targets of indecency violations.

Intrusiveness of Computer Pornography and Access for Children

Despite the argument that pornographic activity makes up only a small portion of online content, it is possible that, as Christian groups (e.g., Zipperer, 1995) and Senator Exon (see Levy, 1995a) have argued, sexual material in any amount is nevertheless pervasive enough to "invade" Americans, particularly children, in their homes.

World wide web browsers do provide point-and-click searching techniques that can lead users to online issues of Playboy, among other sex-oriented magazines. In addition to industry-produced photographs, users can obtain the personal stories, photographs, or conversation of any individual with an Internet connection who posts them to newsgroups or places them at world wide web sites. Because, as journalist Peter Lewis puts it, "every computer is both a bookstore and a printing press" (Lewis, 1995a, p. 10), individuals have the potential to widely distribute their own sexual material.

However, widespread dissemination of any content depends on the numbers of users who actually access the material put online. That is, apart from the ability to mail material to individual e-mail addresses, contributors, whether individual or corporate, can only make available their stories or pictures to those who visit a given newsgroup or web site and who then choose to read or download the files. Thus, the extent to which computer pornography "invades" or intrudes into the homes of users is limited to the ease with which users, particularly children, may find, read, and download potentially indecent materials.

The Courts and Intrusiveness. Consideration of the intrusive nature of an electronic medium has led the Supreme Court to uphold restrictions not only on legally obscene sexual materials, but sexual speech that is otherwise protected by the First Amendment, such as "indecency." In FCC v. Pacifica Foundation (1978), the Court justified regulation of indecent material in the broadcast medium because "patently offensive, indecent material confronts the citizen, not only in public, but also in the privacy of the home" (p. 748). The ability to turn off the radio or television set, the Court argued, would not permit individuals to avoid indecency because the offensive language would have already been heard or seen.

However, the Court in Pacifica also justified regulation because "broadcasting is uniquely accessible to children, even those too young to read" (p. 749). Consequently, courts have since recognized the Pacifica decision as a narrow holding justifying a government interest in protecting children, not adults, from indecent speech (Action for Children's Television v. FCC III, 1993; Sable Communications, Inc. v. FCC, 1989; see also Sergent, 1994).

Donna Rice Hughes, spokesperson for the anti-pornography group "Enough is Enough," claims that "children are going online innocently and naively running across material that's illegal even for adults" (see Levy, 1995a, p. 48). However, little evidence exists to support the claim that children online can run across any sexual material (let alone obscenity) "innocently," as they can with the broadcast medium. In fact, although a number of legal scholars have attempted to apply (or decry) existing media metaphors for the First Amendment status of computer networks (Corn-Revere, 1994; 1995b; Di Lello, 1993; P. Miller, 1993; Sergent, 1994; Smith, 1994), none have advocated applying the "intrusiveness" rationale behind broadcast regulation to computer-mediated communication.

Smith (1993) points out that a number of metaphors have been used to characterize electronic bulletin boards and newsgroups, including electronic soapboxes, booksellers, news agencies, corner pubs, and talk radio. For world wide web or other Internet sites, he suggests that placing files can be characterized as electronic publishing, and reading and downloading those files like browsing in a library and purchasing from a bookstore, respectively. Regarding specifically sexual speech, Smith argues that telephone sex services ("dial-a-porn") are a closer analogy to computer-mediated sexual communication than is broadcast indecency.

In Sable Communications, Inc. v. FCC (1989), the Supreme Court distinguished telephone communications from broadcasting, arguing that, unlike radio or television, "the dial-it medium requires the listener to take affirmative steps to receive the communication" (p. 127). Consequently, because "callers will generally not be unwilling listeners" (p. 127), telephone communications are substantially different from over-the-air broadcasts, and thus, telephone indecency is protected speech.5

P. Miller (1993) argues that the Pacifica and Sable decisions have suggested for electronic media a "spectrum of intrusiveness." Broadcast services "that arrive in the home unsolicited, providing viewers or listeners with little prior warning or protection against unexpected program content" (p. 1154) are at the most intrusive end, whereas services "that require some sort of initiating act or intervention to trigger each transmission" (p. 1154), such as dial-a-porn and "pay-per-view" cable transmissions, are at the least intrusive end. He argues that computer-mediated communication "would be among the least intrusive of communications media" (p. 1192) because gaining access requires "the use of a considerable amount of computer equipment, a 'dial up' initiated by the user, and (at least for commercial services) the entering of an individual password assigned to each user" (p. 1192).

Although arguably computer equipment in time could be as pervasive as television sets, and the knowledge required to "dial up" may eventually be as commonplace as the ability to turn on the TV set or dial the telephone, once successfully online, a user must nevertheless actively seek out sex- related information in order to find it. Because of the great variability in online services and communication forms, a number of different tasks are necessary that make accidentally stumbling onto pornography or sexual communication highly unlikely (Levy, 1995b; see also Corn-Revere, 1995b; P. Miller, 1993; Sergent, 1994). World wide web (or gopher, ftp, or telnet) users must navigate their way through pages of text or know how to conduct a search, newsgroup lurkers must first subscribe to a desired newsgroup then wade through selections of posts, and real-time chat participants must know how to find and connect to the desired sex-related chat room. Additional steps are necessary to download and reassemble digital visual images so that they can be viewed (Krol, 1994). In short, online media use, unlike television or radio, involve a highly selective set of choices, including which computer medium to use and what type of material to access.

Corn-Revere (1995b) takes this argument further and contends that, in addition to the selectivity, or, in the words of the Court, "affirmative steps" necessary to participate in computer networks, online communication offers "users (read parents) a much greater degree of control over what may be accessed than ever imagined for a telephone or television" (p. 19). He argues that (in addition to available parental controls) a basic skill is required for computer network use that is not a prerequisite for any other electronic medium: literacy. Thus, one "protection" for very young children may be simply their own limited cognitive development, as computer-mediated communication would not be, like television, accessible for "those too young to read" (Pacifica, p. 749).

In light of progressively more visually-oriented world wide web browsers, the literacy requirement may become increasingly less important. Nevertheless, some active searching of the web would be still be necessary, not to mention that access to the vast array of messages on the rest of the Internet (e.g., newsgroups, chat rooms) would always be mediated by literacy.

The Need for Developmental Research. A number of researchers have examined children's computer ability and attitudes (e.g., Lepper & Gurtner, 1989; Niemiec & Walberg, 1987; Williams & Ogletree, 1992). However, these studies have typically focussed on kids' interest in and use of different kinds of educational software in classroom settings (e.g., Sprigle & Schaefer, 1984; Williams & Ogletree, 1992).

Although these studies suggest that even young children may be interested in and have some ability for computers, they do not provide evidence that children who are not yet able to read are able to navigate their way through computer network connections. Research needs to address developmental differences in the skills and interest necessary for accessing and participating in Internet or other online services. In other words, is the ability to read indeed a principal skill for becoming literate at logging on to computer networks?

Furthermore, researchers need to address whether, once children are able to read, there are other developmental differences that facilitate participation in different online media. For example, younger children (approximately below age eight) tend to focus more on perceptual features of a stimulus when processing information (Flavell, 1985), whereas older children are better able to integrate perceptual cues and conceptual information. This suggests that younger children may be more likely to notice visual images on the Internet than participate in text-based discussion groups or chat rooms. However, apart from the graphics that appear on certain world wide web pages, most pictures on the Internet require some knowledge of downloading and decoding binary formats in order to view them (Krol, 1994). And as a host of newsgroup posts indicate, a great many people much older than preschoolers seem to have difficulty learning this skill (see L. Miller, 1995). It is possible, therefore, that young children may get very little from Internet connections and rely more on CD- ROM technology, which provides a host of stimulating visual and audio features, many of which are designed for children. However, this possibility requires investigation.

Older children and adolescents, on the other hand, are likely to be more "techno-savvy" (Levy, 1995b, p. 48; see also Calvert, 1994; Scaife & Bond, 1991) and, possibly even from having to do reports for school, more knowledgeable about valuable Internet searching techniques. This ability, together with a curiosity about sex, means that older kids and adolescents are likely to gain access to sexually explicit images on the Internet relatively easily (although probably not on adult BBSs, which require a separate connection that one's parents must pay for in advance).

Although kids have been getting hold of naked pictures for ages, what worries some parents is that the Internet makes naked pictures as well as hard-core material easier to obtain than is the case without computer connections. Levy (1995b) argues that "in predigital days, getting one's hands on hot pictures required running an often impenetrable gantlet [sic] of drugstore clerks and newsstand operators, and finding really hardcore material was out of the question" (p. 48). Indeed, the Internet does make available extreme forms of pornographic pictures, such as explicit acts of bestiality, that may not be typically obtainable from the neighborhood newsstand. Thus, kids who are motivated will probably not have much trouble finding explicit pornography. However, they won't stumble onto it. The key here is motivation: young people must take active steps, sometimes even overcoming computer glitches, to seek pornography out. Furthermore, for those families whose Internet connection comes from one of the commercial services (e.g., America Online), these motivated children must also explain to their parents how so much expensive online time was used for downloading.

In addition to accessing pornographic pictures or stories, parents and legislators have expressed concern that computer-wise children and adolescents may easily participate in sex-related chat rooms in which they can pretend to be adults (or any identity they create) and engage in sexually explicit conversation. Psychologist Sherry Turkle's initial research on children's online experiences indicates that adolescents do experiment with interactive erotica (such as in chat rooms) in order to "play with identity" and "develop a sense of themselves" (see Levy, 1995b, p. 48). Indeed, they may explore their sexuality without having to suffer the real-life consequences of sexually transmitted diseases or pregnancy. Further research in this area is needed to help identify the developmental and psychological factors that explain child or adolescent participation in online sexual chat, newsgroup discussions, or pornographic imagery, especially when compared to experimentation with real-life sexual experiences, so that parents and educators may better understand their children's motivation for using these media and the gratifications these media may provide.

Some children's advocacy groups have expressed fear that participation in sex-related chat rooms may make children and adolescents targets for online harassment or even physical prey for pedophiles (e.g., if a child's phone number or address can be obtained). Dangers of abuse for children are certainly not limited to the online environment, as parents have been teaching their children for generations how not to talk to nor accept rides from strangers. However, according to Ernie Allen of the National Center for Missing and Exploited Children,"the nature of the technology...creates a false sense of security" (see Levy, 1995b, p. 48). His concern about children, thus, is not so much that computer-mediated sexual material is intrusive or unavoidable, but that children themselves may not realize that they can be vulnerable to attack within the privacy of their homes.

A useful avenue for research, therefore, may be to investigate intervention techniques to help children understand that because they are at home or school does not mean they are unapproachable or invincible. Furthermore, coping strategies may be developed to help children and adolescents learn how to deal with strangers' online proposals or unsolicited offensive e-mail.6 Turkle argues that propositions from adults are "less upsetting if a child is prepared for it" (see Levy, 1995b, p. 48) and suggests that children should be forewarned as well as instructed to say "I'm not interested" and leave the chat room. Tamosaitis (1995) argues that even pedophilic newsgroups such as "alt.sex.intergen" may provide invaluable knowledge (perhaps their only value) about how pedophiles think and operate that may help researchers develop better strategies for protecting children.

Parental Controls. If a parent truly does not want his or her children gaining any access to online sex-related material, a number of technological alternatives to government prohibition of "lewd" or "indecent" content have recently become available. The software industry has produced packages that when installed restrict access to objectionable content (Abernathy, 1995b). SurfWatch is available for $50 (plus $5.95 per month for updates) and blocks access to objectionable language and over 1600 sites that SurfWatch's creators classify as pornographic. However, because SurfWatch's approach has been criticized for its blanket "blacklisting" of sites and language, the company promises a future version, SurfManager, that allows users to customize the filter. NetNanny, also available for about $50, allow parents or teachers to choose words or phrases (e.g., "What's your phone number?") that, if encountered, will shut down an online session. WebTrack, available free to schools, blocks access to world wide web sites that cover sex, drugs, hate speech, criminal skills, and gambling.

Many commercial online providers come equipped with screening devices for parents. Prodigy requires that the household's main account holder activate access for each member of the household to USENET, chat and bulletin board areas with a valid credit card number (Lewis, 1995a). In addition to current screening tools, America Online plans to incorporate SurfWatch as a filtering option for parents, and CompuServe plans a kids' version of Internet in a Box that provides similar blocking technology (Abernathy, 1995b). Siecom, Inc., an Internet provider for schools, limits its selection of newsgroups and allows schools to further limit newsgroups and screen e-mail for objectionable content.

Of course, parental control filters are not without problems. Either parents must accept, for example, what SurfWatch defines as objectionable, or they must themselves think of all the words or phrases that someone could use to describe pornographic pictures or to proposition their kids. Rob Glaser, chief executive of Progressive Networks, envisions a number of different "tunable filters" emerging from different organizations, which would allow parents to choose a filter from a credible information source that they trust, such as the National Education Association, the Children's Defense Fund, or the Christian Coalition (see Corn-Revere, 1995b). Such filters would be analogous to the Catholic Church providing for parishioners lists of movies that should be avoided by "the faithful."

Finally, a number of corporations have collaborated on plans to develop rating systems for various network sites that would assist parents in screening unwanted information. The World Wide Web Consortium (consisting of AT&T, Digital Equipment, IBM, Microsoft, and Sun Microsystems) has proposed that ratings be added to the "HTTP" protocol of web sites, such that Internet access providers or individual computer users could set a level for acceptable material (Abernathy, 1995b). Similarly, Kid Code, an initiative under review by the Internet Engineering Task Force, is designed to have voluntary ratings embedded in web addresses. In addition, the Information Highway Parental Empowerment Group (including Microsoft, Netscape Communications, and Progressive Networks) plans to offer individual content providers throughout the Internet with a means of self-rating that parents and teachers could then use to define acceptable content (Abernathy, 1995b).

According to Nathaniel Borenstein, designer of Kid Code, "Places that provide erotica on the Internet are wild about the idea of voluntary ratings...They don't want to sell to kids" (see Levy, 1995b, p. 50). They also do not want, I am sure, to have their services criminalized by government regulation.

In sum, computer-mediated communication does not appear to be "intrusive" in the broadcast sense of confronting people, particularly children, unaware in their homes. Children may be able to access pornographic pictures and sexually explicit stories and discussion, but they must have the skills and motivation necessary to do so, as they are not likely to come across such material accidentally. Research is necessary to determine what developmental skills, such as literacy or visual processing, and motivations, such as experimenting with sexual identity, are likely to mediate very young versus older children and adolescent Internet participation. Investigation of strategies for coping with offensive online behavior would also help parents protect their children from potential abuse.

Social Effects of Cybersex

Senator Exon has argued that one of the reasons for placing restrictions on "smut" in cyberspace is that "the information superhighway is ...a revolution that in years to come will transcend newspapers, radio, and television as a news source" (see Lewis, 1995a, p. 10) and that "society is going astray" (see Levy, 1995a, p. 47). The implication here is that computer networks are or will be a powerful force in shaping society, and unless curbs are placed on "cybersex," its influence will be in a harmful direction. However, others argue that unrestricted computer networks are avenues for a better society, building communities among strangers and facilitating communication across geographical barriers (e.g., Rheingold, 1993). Following is a discussion of research avenues that could address the potential harms versus benefits of permitting sexually explicit materials online.

Visual and Textual Pornography. Photographic representations of sex, particularly commercial forms, are primarily what have galvanized those attempting to restrict explicit expression, as evidenced by Senator Exon's infamous display, before the Senate vote on his amendment, of a big blue notebook filled with downloaded explicit photographs.7 Similarly, although some researchers have examined explicit textual stories as stimulus material (e.g., Malamuth, 1986), visual sexual imagery has also been the focus of mass communication researchers interested in examining the nature (e.g., violent, degrading to women, etc.) or effects of pornography (see Linz & Malamuth, 1993). Thus, many concerns about pornographic images or stories online are essentially restatements of concerns about pornography in general. Consequently, I will provide only an account of the research in this area as it has implications for research on the effects of online pornography.

Pornography opponents have often asserted that pornographic imagery and stories (on the Internet or elsewhere) causes men to behave aggressively towards women (e.g., Dworkin & MacKinnon, 1988; MacKinnon, 1993). However, this assertion is not supported by much of the relevant research on exposure to at least non-violent forms of pornography (see Donnerstein, Linz, & Penrod, 1987; Linz & Malamuth, 1993, for reviews). Generally speaking, laboratory experiments have shown that, unless subjects are "angered" (as part of the experimental manipulation) and exposed to material they deem unpleasant or that depict sexual violence, exposure to non-violent pornography does not increase, and may even decrease (Baron, 1974), subsequent aggressiveness.

Results are mixed for pornography's effect on anti-social attitudes, such as acceptance of rape myths or callousness toward sexual violence victims. Several recent reviews argue that there is little evidence of increased anti-social attitudes or behavior following exposure to nonviolent pornographic films (e.g., Linz, 1989; Linz & Malamuth, 1993), although a recent meta-analysis (Allen, Emmers, Gebhardt, & Giery, 1995) reports a small but positive correlation between nonviolent pornography and acceptance of rape myths across several experimental studies.

Receiving much more research support is the argument that violent pornography fosters anti- social attitudes and behaviors toward women (see e.g, Donnerstein, Linz, & Penrod, 1987; Linz, 1989; Malamuth & Donnerstein, 1984, for reviews; see also U.S. Attorney General, 1986). However, even in this area a recent review by Fisher and Grenier (1993) (as well as two new studies they present) suggests that much research fails to support the hypothesis that even violent pornography leads to antiwoman thoughts and acts.

Because results have been so mixed, it is difficult to hypothesize what effects online pornographic images may have. Nevertheless, because much evidence does exist to support anti-social effects of violent forms of pornography, it may be useful to consider whether Internet or BBS pornography is likely to be as or more violent than non-digital material. Considering that most photographs online are arguably uploaded pictures copied from commercial magazines, such as Penthouse (Wildhack, 1995), violent forms may not be particularly prevalent relative to their print or video counterparts (even considering Rimm's data). However, this is ultimately difficult to determine, not only because digital images appear sporadically and change frequently throughout computer networks, but because research on the prevalence of violence in non-digital pornography that would offer a means of comparison consists of flatly contradictory findings. Fisher and Grenier (1993) bemoan "daunting" inconsistencies that "defy explanation" (p. 23), such as seven studies that find relative high degrees of violence in magazines and films while seven other similar studies find the exact opposite! Furthermore, online visual images are limited to still photographs, thus even violent scenes may be removed of some force when compared to the prolonged action footage available in local video rental outlets.

On the other hand, sexually violent stories online may be a greater concern. In one now famous case, a male college student, Jake Baker, uploaded a fantasy story to an erotic stories newsgroup in which he describes in graphic detail how he brutally rapes, tortures, and murders a female classmate (Chapman, 1995). Because Baker used his classmate's real name in the story, police interpreted it as a threat and arrested him (although charges were later dismissed). Baker's online rape fantasy became famous only because he used a real-life woman's name, but it is unclear how many other similar stories appear on the Internet. Tamosaitis (1995) argues that newsgroups like "alt.sex.stories" and "rec.arts.erotica" feature erotic stories of all kinds of different themes, but this remains to be investigated systematically.

Although I have argued earlier that more "deviant" material (such as pictures and stories of sex acts with animals) may appear online than are found in mainstream pornography markets, these images are not necessarily more violent. Even images of "bondage" and its variations, proponents argue, are typically not "violent" in the sense of depicting rape or other cruelty to women (see Tamosaitis, 1995). In fact, much of the BDSM subculture is devoted to the "sexual play" of disciplinary themes without real harm to participants (Furniss, 1993), and, as the popularity of the "alt.sex.femdom" newsgroup suggests, women commonly occupy positions of power and dominance (Tamosaitis, 1995). Nevertheless, adults or children who are not part of the BDSM subculture but who lurk in these newsgroups may see in such photographs only encouragement of violence.

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