The Indecency of Legislating Decency

Malavika Patil asked in a comment to the post “My Position on MF Husain”: “Does obscenity/pornography deserve free speech rights?” As a free speech fundamentalists, I can only answer, “Yes, yes, and yes!” I am enough of a realist to believe that no individual or group is so wise as to be a judge of what speech deserves the protection of law and what doesn’t. The only way forward is to allow all speech, regardless of how someone feels about it.

My response to someone who says, “I am offended by that” is to quote Stephen Fry: “Well, so fucking what!” (See the video at the end of this post.)

Just because someone is offended by someone else’s speech does not give the former any rights whatsoever to muzzle the latter. You are free to take offense to your heart’s content — but don’t expect other people to fall in line and say only those things that please you.

The attempt to regulate free speech is made fairly regularly — and not just in third world impoverished countries. Even in rich countries with a very robust culture of freedom, some attempt to curb speech. I am reminded the Communications Decency Act of the US — an “attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the U.S. Supreme Court partially overturned the law.”

The CDA made no sense. I quote in full here an editorial on the subject published around that time. It was written in protest against internet censorship by a retired trial judge and and assistant professor of criminal justice at the University of Texas.

Two things. First, I must caution the reader of delicate constitution easily offended by strong language against reading this editorial. It will definitely upset you if you are in favor of dictating what others should read, write, hear, speak, watch or show. You have been warned very seriously.

Second, when reading it, remember that it was written a long time ago — around 1996. Think no youtube, think google just about getting started. Remember, for example, India did not have internet access, and so on. And then note how relevant even today the message of this editorial is.

THE X-ON CONGRESS: INDECENT COMMENT ON AN INDECENT SUBJECT

by Steve Russell

SAN ANTONIO, Texas — You motherfuckers in Congress have dropped over the edge of the earth this time. I understand that very few of the swarm of high dollar lobbyists around the Telecommunications Bill had any interest in content regulation — they were just trying to get their clients an opportunity to dip their buckets in the money stream that cyberspace may become — but the public interest sometimes needs a little attention. Keeping your eyes on what big money wants, you have sold out the First Amendment.

First, some basics. If your children walked by a public park and heard some angry sumbitches referring to Congress as “the sorriest bunch of cocksuckers ever to sell out the First Amendment” or suggesting that “the only reason to run for Congress these days is to suck the lobbyists’ dicks and fuck the people who sent you there,” no law would be violated (assuming no violation of noise ordinances or incitement to breach the peace). If your children did not wish to hear that language, they could only walk away. Thanks to your heads-up-your-ass dereliction of duty, if they read the same words in cyberspace, they could call the FBI!

Cyberspace is the village green for the whole world. It is the same as the village green our Founders knew as the place to rouse the rabble who became Americans, but it is also different. Your blind acceptance of the dubious — make that dogass dumb — idea that children are harmed by hearing so-called dirty words has created some pretty stupid regulations without shutting down public debate, but those stupid regulations will not import to cyberspace without consequences that even the public relations whores in Congress should find unacceptable.

In cyberspace, there is no time. A posted message stays posted until it is wiped. Therefore, there is no way to indulge the fiction that children do not stay up late or cannot program a VCR.

In cyberspace, there is no place. The “community standards” are those of the whole world. An upload from Amsterdam can become a download in Idaho. By trying to regulate obscenity and indecency on the Internet, you have reduced the level of expression allowed consenting adults to that of the most anal retentive blueballed fuckhead U.S. attorney in the country. The Internet is everywhere you can plug in a modem. Call Senator Exon an “ignorant motherfucker” in Lincoln, Nebraska and find yourself prosecuted in Bibleburg, Mississippi.

In cyberspace, you cannot require the convenience store to sell Hustler in a white sleeve. The functional equivalent is gatekeeper software, to which no civil libertarian has voiced any objection. Gatekeeper software cannot be made foolproof, but can you pandering pissants not see that any kid smart enough to hack into a Website is also smart enough to get his hands on a hard copy of Hustler if he really wants one?

In cyberspace, there is the illusion of anonymity but no real privacy. It is theoretically possible for any Internet server to seine through all messages for key words (although it seems likely the resulting slowdown would be noticeable). Perhaps some of you read about America OnLine’s attempt to keep children from reading the word “breast?” An apparently unforeseen consequence was the shutdown of a discussion group of breast cancer survivors. Don’t you think more kids are aware of “teat” (pronounced “tit”) than of “breast?” Can skirts on piano legs, er, limbs be far behind?

But silly shit like this is just a pimple on the ass of the long-
term consequences for politics, art and education. You have passed a law that will get less respect than the 55 m.p.h. speed limit dead bang in the middle of the First Amendment. Indecency is nothing but a matter of fashion; obscenity is the same but on a longer timeline. This generation freely reads James Joyce and Henry Miller and the Republic still stands. The home of the late alleged pornographer D. H. Lawrence is now a beautiful writers’ retreat in the mountains above Taos, managed by the University of New Mexico.

Universities all have Internet servers, and every English Department has at least one scholar who can read Chaucer’s English — but not on the Internet anymore. Comparative literature classes might read Boccaccio — but not on the Internet anymore. What if some U. S. Attorney hears about Othello and Desdemona “making the beast with two backs” — is interracial sex no longer indecent anywhere in the country, or is Shakespeare off the Internet?

Did you know you can download video and sound from the Internet? Yes, that means you can watch other people having sex if that is interesting to you, live or on tape. Technology can make such things hard to retrieve, but probably not impossible. And since you have swept right past obscenity and into indecency, the baby boomers had better keep their old rock ‘n roll tapes off the Internet.

When the Jefferson Airplane sang “her heels rise for me,” they were not referring to a dance step. And if some Brit explains the line about “finger pie” in Penny Lane, the Beatles will be gone. All of those school boards that used to ban “The Catcher in the Rye” over cussing and spreading the foul lie that kids masturbate can now go to federal court and get that nasty book kept out of cyberspace.

But enough about the past. What about rap music? No, I do not care much for it either — any more than I care for the language you shitheads have forced me to use in this essay — but can you not see the immediate differential impact of this law by class and race? What is your defense — that there are no African-Americans on the Internet, since they are too busy pimping and dealing crack? If our educational establishment has any sense at all, they will be trying to see more teens of all colors on the Internet, because there is a lot to be learned in cyberspace that has nothing to do with sex.

There are plenty of young people in this country who have legitimate political complaints. When you dickheads get done with Social Security, they will be lucky if the retirement age is still in double digits. But thanks to the wonderful job the public schools have done keeping sex and violence out, we have a lot of intelligent kids who cannot express themselves without indecent language. I have watched lawyers in open court digging their young clients in the ribs every time the word “fuck” slipped out.

Let’s talk about this fucking indecent language bullshit. Joe Shea, my editor, does not want it in his newspaper, and I respect that position. He might even be almost as upset about publishing this as I a about writing it. I do use salty language in my writing, but sparingly, only as a big hammer. Use the fucking shit too fucking much and it loses its fucking impact — see what I mean? Fiction follows different rules, and if you confine your fiction writing to how the swell people want to see themselves using language, you not only preclude literary depiction of most people but you are probably false to the people you purport to depict.

Do you remember how real language used by real people got on the air and in the newspapers? Richard Nixon, while he was president, speaking in the White House about official matters. A law professor and a nominee for Supreme Court Justice arguing about pubic hairs and porno movies during Senate hearings. Are these matters now too indecent for the Internet? How much cleansing will be required of the online news services? Answer: Enough cleansing to meet the standard of what is appropriate for a child in the most restrictive federal judicial district.

This is bullshit — unconstitutional bullshit and also bad policy bullshit. To violate your ban on indecency, I have been forced to use and overuse so-called indecent language. But if I called you a bunch of goddam motherfucking cocksucking cunt-eating blue-balled bastards with the morals of muggers and the intelligence of pond scum, that would be nothing compared to this indictment, to wit: you have sold the First Amendment, your birthright and that of your children. The Founders turn in their graves. You have spit on the grave of every warrior who fought under the Stars and Stripes.

And what mess of pottage have you acquired in exchange for the rights of a free people? Have you cleansed the Internet of even the rawest pornography? No, because it is a worldwide system. You have, however, handed the government a powerful new tool to harass its critics: a prosecution for indecent commentary in any district in the country.

Have you protected one child from reading dirty words? Probably not, if you understand what the economists call “substitution” — but you have leveled the standards of political debate to a point where a history buff would not dare to upload some of the Federalist v. Anti-Federalist election rhetoric to a Website.

Since the lobby reporting requirements were not law when the censorship discussion was happening, I hope you got some substantial reward for what you gave up. Thirty pieces of silver doesn’t go far these days.

[This article may be reproduced free forever.]

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

And now for the video of Stephen Fry taking about “respect” and “offense.”

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

And finally, I like this old post of mine from four years ago: The Freedom to be Offended — Part 3.

Author: Atanu Dey

Economist. View all posts by Atanu Dey